Norfolk County Trust Co. v. Green

• Decision Date: 01 December 1939
• Citation: 304 Mass. 406,24 N.E.2d 12
• Parties: NORFOLK COUNTY TRUST CO. v. GREEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 406

24 N.E.2d 12

NORFOLK COUNTY TRUST CO.

v.GREEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 1, 1939.

Exceptions from Superior Court, Suffolk County; Hanify, Judge.

Action by the Norfolk County Trust Company against M. Thomas Green and trustee, to recover on a written extension of a mortgage signed by the original mortgagee and defendant. The trial judge found for the plaintiff in the amount of $5,095.63, and defendant brings exceptions.

Exceptions overruled.

J. S. Marsh, of Boston, for plaintiff.

J. P. Sullivan and D. P. Donaldson, both of Boston, for defendant.

DONAHUE, Justice.

The plaintiff was the assignee of a real estate mortgage. It seeks in this action to recover on a written extension of the mortgage signed by the original mortgagee and by the defendant.

The case was tried before a judge of the Superior Court sitting without a jury. It was agreed at the trial that the plaintiff had foreclosed the mortgage and that the balance due (that is, the difference between the principal sum of the mortgage, interest, taxes and foreclosure expenses, and the amount brought at the foreclosure sale) was $5,095.63. The judge found for the plaintiff in that amount and the case is here on exceptions to his refusal to give certain requested rulings.

The mortgage in question was given in 1919 by one Richards to the Boulevard Trust Company. Thereafter the defendant's mother became the owner of the equity of redemption. Upon her death in 1925 the defendant and his three sisters became, by inheritance, the owners of the equity of redemption. In 1928 the mortgagee notified the defendant that it required an agreement extending the mortgage. A written agreement dated July 1, 1929, extending the mortgage for the period of three years, and containing the elements usually found in such extensions, was signed by the mortgagee, and by the defendant in the form, ‘M. Thomas Green, Agt.’ At some time thereafter the mortgage was assigned to the plaintiff. It was agreed at the trial that the plaintiff thereby acquired any rights that the mortgagee had under the extension agreement.

The question here presented is whether the defendant, by signing the extension agreement in the manner in which he did, made himself personally liable thereunder. That question is to be decided from the language of the agreement, which is not ambiguous. Goodenough v. Thayer, 132 Mass. 152, 154;Snow v. Orleans, 126 Mass. 453, 456;Abbey v. Chase, 6 Cush. 54, 56. The mere fact that the defendant signed his name with the added abbreviation ‘Agt.’ did not exempt him from personal liability. Such a signature to a written agreement, whose provisions do not show a contrary intention, makes the signer personally liable on the agreement. First Baptist Church of Sharon v. Harper, 191 Mass. 196, 198, 77 N.E. 778;Snow v. Orleans, 126 Mass. 453, 456;Brown v. Bradlee, 156 Mass. 28, 31, 32, 30 N.E. 85, 15 L.R.A. 509, 32 Am.St.Rep. 430; Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101, 104, 107;Fullam v. West Brookfield, 9 Allen 1, 4. See Jump v. Sparling, 218 Mass. 324, 325, 326, 105 N.E. 878. Am.Law Inst. Restatement: Agency, s 321. Williston, Contracts, s 285.

An examination of the language in the body of the extension agreement discloses nothing that relieves the defendant from personal liability. He is there designated as ‘M. Thomas Green Agent,’ but no principal is named or referred to therein. In the extension agreement as ‘owner of the equity of redemption of the mortgaged premises' he agreed ‘for himself his _____, heirs and representatives and assigns' that the payment of the principal sum secured by the mortgage by extended for three years, and as ‘owner agrees to perform and observe the conditions and covenants of said mortgage as so extended, and to pay the principal and interest secured thereby when due. * * *’ The agreement also contained the statement: ‘I hereby further agree to make interest payments quarterly.’ The only promises expressed in the agreement, other than those of the mortgagee, are the personal promises of the defendant and he must be held to be bound by them. Brown v. Bradlee, 156 Mass. 28, 32, 30 N.E. 85, 15 L.R.A. 509, 32 Am.St.Rep. 430; Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101, 104, 106;Seaver v. Coburn, 10 Cush. 324, 326;Simonds v. Heard, 23 Pick. 120, 125,34 Am.Dec. 41. This case is distinguishable from cases where the promises in an instrument do not purport to be those of the signer. Blanchard v. Blackstone, 102 Mass. 343, 346;Ellis v. Pulsifer, 4 Allen 165, 168;Abbey v. Chase, 6 Cush. 54.

The defendant's exceptions here argued are to the refusal of the judge to give three requested rulings. They were to the effect that the plaintiff could not recover if the defendant disclosed to the officers of the mortgagee, or if they knew that he did not intend to bind himself personally in signing the extension agreement; or if they knew or had...