Nourse v. Jennings

• Decision Date: 28 February 1902
• Citation: 62 N.E. 974,180 Mass. 592
• Parties: NOURSE v. JENNINGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 592

62 N.E. 974

NOURSE v. JENNINGS.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1902

COUNSEL

Peabody &amp Arnold, for plaintiff.

Anson M. Lyman, for defendant.

OPINION

LORING, J.

This is a bill in equity to redeem a mortgage. The suit was heard by the court, a detailed statement of the facts found was made and the testimony was taken by a commissioner under the rule. A decree was made allowing the plaintiff to redeem on payment of $2,672.50, with interest at 6 per cent. from the final decree, and the case comes here on the defendant's appeal.

The mortgage is conditioned for the payment of 'the sum of twenty-five hundred dollars, together with any other sum or sums of money that I now owe to or hereafter may borrow from the said Jennings [the mortgagee] during the life of this mortgage.' In addition to a note for the $2,500 mentioned in the mortgage, the defendant held a note for $2,000, on which the plaintiff's name had been forged as one of two joint makers, and the defendant claimed to hold his lien until that note was paid. The facts out of which the litigation arose were these: One Ball, the son-in-law of the plaintiff, being in financial difficulties, forged the plaintiff's name as joint maker with himself on a promissory note for $2,000, and procured one Stephen Jennings, the father of the defendant, to discount it. This was in March, 1900. A month and one-half afterwards he applied to said Stephen to advance to him $2,500 on a second mortgage of the plaintiff's dwelling house in Boston, and stated that that mortgage should also secure the $2,000 note mentioned above. This was done without the knowledge of the plaintiff. Stephen Jennings was indebted to the defendant, and before the transaction was carried through the defendant agreed to take the two notes in payment or in part payment of a debt due him from his father, Stephen. Under that arrangement the mortgage note for $2,500 and the mortgage were made directly to the defendant. After the arrangement for the loan of $2,500, and after it had been arranged that the mortgage should secure that sum and the note for $2,000, and on the morning on which the papers were to be passed, Ball told the plaintiff that he was in temporary need of money, and asked her to sign a note for $2,500 on the understanding that he would pay it at maturity. She consented, and went to Ball's office to sign the paper. She testified that she signed the note after reading it, and also two other papers without reading them, on Ball's assurance that they were only duplicates of the note. One of these two papers was the mortgage, and the other was an agreement not to further incumber the house covered by the mortgage in question, in consideration of the defendant's not putting the mortgage on record in the registry of deeds. There was a dispute as to whether she signed a fourth paper or not. The fourth paper was a direction to the defendant to pay the proceeds of the mortgage note for $2,500 to Ball. Ball disappeared in September, 1900, and it does not appear that he has been heard from since then. The plaintiff brought this bill to redeem after tender of the principal and interest of the note for $2,500, and the decree was made on that footing. At the trial there was a direct conflict between the plaintiff and one Cox, introduced as a witness by the defendant, as to what took place when the note for $2,500, the mortgage, and the agreement not to incumber were signed. Cox testified that he produced the note for $2,000 at that time, and that it was then examined by the plaintiff. The presiding judge, who saw the witnesses on the stand, believed the plaintiff, and the defendant does not now seek to overturn his finding on that point. The defendant now contends that, although the plaintiff did not authorize Ball to agree that the mortgage should cover the note for $2,000, as well as the note for $2,500, yet that agreement was made by Ball, and was within the apparent scope of Ball's authority as the agent of the plaintiff....