Nevins v. Tinker

• Decision Date: 14 December 1981
• Citation: 429 N.E.2d 332,384 Mass. 702
• Parties: , 32 UCC Rep.Serv. 1327 Elaine A. NEVINS et al. 1 , coexecutors, v. Alfred B. TINKER, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 332

429 N.E.2d 332

384 Mass. 702, 32 UCC Rep.Serv. 1327

Elaine A. NEVINS et al. ¹, coexecutors, v. Alfred B. TINKER, Jr.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Oct. 8, 1981.

Decided Dec. 14, 1981.

Richard L. Curley, Hyannis, for defendant.

Before HENNESSEY, C. J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

This is an action of contract brought in the Second District Court of Barnstable County. The plaintiffs are coexecutors of the estate of a domiciliary of New York. They sought to recover $20,000 plus interest due on two promissory notes given by the defendant, a Massachusetts resident, and payable to their testatrix.

After a trial, a judgment for the plaintiffs in the sum of $16,000 together with interest and costs was entered on June 23, 1977. The defendant filed a request for a report to the Appellate Division. The Appellate Division entered an opinion and order dismissing the report on November 19, 1980. The defendant filed a notice of appeal with this court. G.L. c. 231, § 109. ² We affirm.

The facts are as follows: The plaintiffs' testatrix, Luella B. Carlson, was the aunt of the defendant, Alfred Tinker, Jr. Carlson loaned Tinker, who had a restaurant on Cape Cod, $20,000 in two equal installments. The first loan was made in December, 1972, and was followed by a second in October or November of the next year. The trial judge found both loans were consummated in Massachusetts, and the money was paid here. Initially the parties had only an oral agreement which set interest at 8% with the principal payable on demand. Sometime after the making of the second loan, Tinker went to Carlson's New York home and signed two promissory notes for $10,000 each at 8% interest. The notes were dated January 10, 1973, and November 5, 1973, respectively. No new consideration was given by Carlson for these notes, and the trial judge found that they were intended as "a written memorial of their previously concluded arrangement." Tinker has made no payments toward the principal, but he paid interest to Carlson until her death.

Carlson's will was probated in the Surrogate's Court of Suffolk County, New York, on June 3, 1975. In this will the testatrix provided several legacies, including one to Tinker for $1,000. The fourth clause, which is one source of the present controversy, provides as follows: "If, at the time of my death, my nephew, ALFRED B. TINKER, JR., still retains a balance on my original investment in his restaurant known as The Blacksmith Shop, Truro, Massachusetts, I direct that one-third of such balance or the sum of FOUR THOUSAND ($4,000.00) DOLLARS be cancelled and credited to the investment of said ALFRED B. TINKER, JR.; one-third of such balance or the sum of FOUR THOUSAND ($4,000.00) DOLLARS whichever is less, be cancelled and credited to the investment of my nephew, MARTIN P. TINKER; and one-third of such balance or the sum of FOUR THOUSAND ($4,000.00) DOLLARS, whichever is less, be cancelled and credited to the investment of my nephew, WILLIAM M. TINKER. In the event that after these transactions have been completed, there should remain any balance on my said investment, then ALFRED B. TINKER, JR., shall have one (1) year in which to pay the said balance to my estate, together with interest at the rate of eight (8) per cent per annum to the date of payment. Upon payment in full, my Executors are directed to cancel and return to my said nephew all evidences of such investment and indebtedness."

The New York coexecutors brought this action directly in the District Court. G.L. c. 218, § 19. At the close of the trial the defendant made ten requests for rulings of law, which raised two basic issues. The first was that the note dated January 10, 1973, was usurious under New York law ³ which, he claimed, governed the transactions. The second was that the fourth clause of Carlson's will operated to forgive, partially if not totally, the note dated November 5, 1973. These requests were denied. The judge found that the first note was not usurious, since the loan was entirely consummated in Massachusetts and its " 'enforceability' or ... remedy is determined by the Lex fori."

There was no error on this issue. We agree with the view of the Appellate Division, which affirmed this ruling. Since the note in question is a negotiable instrument as defined in the Uniform Commercial Code, G.L. c. 106, § 3-104(1), conflict of law problems pertaining to it are resolved by the Code. Where the transaction bears an "appropriate relation" to Massachusetts, and where there is no evidence of an agreement between the parties that the law of another jurisdiction should apply, the laws of the Commonwealth govern. G.L. c. 106, § 1-105(1). Industrial Nat'l Bank of R.I. v. Leo's Used Car Exch., Inc., 362 Mass. 797, 800, 291 N.E.2d 603 (1973). At the time of its making, the note was not usurious under Massachusetts law. G.L. c. 271, § 49(a).

The defendant argues further that the trial judge improperly construed the language of the will as to the note of November 5, 1973. ⁴ Additionally, the defendant claims that the trial judge had no authority to interpret a will admitted to probate in New York. Although the defendant cites no authority to sustain either argument, we consider these claims briefly and conclude there was no error.

We note at the outset that the defendant's answer and counterclaim do not raise properly the issues he now seeks to argue. The defendant's answer sought to raise the issue of forgiveness, arising from the testatrix's will, not only for the defendant but also on behalf of his two brothers, neither of whom was a party to the action.

As to the issue whether the trial judge had the power to interpret the will in regard to any intent to forgive a portion of the defendant's debt, it was the defendant who invited such an interpretation. Assuming it was error (but see Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 662-663, 664, 665 n.18, 374 N.E.2d 272 (1978)), it was error invited by the defendant. See Fairfield v. Lowry, ...