Pabujian v. Pabujian
| Decision Date | 28 February 1929 |
| Citation | 266 Mass. 403 |
| Parties | MIHRTAD PABUJIAN v. SADIE B. PABUJIAN, administratrix. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
February 7, 1929.
Present: RUGG, C.
Bills and Notes Payment. Mortgage, Of personal property. Evidence Presumptions and burden of proof, Failure to produce evidence, Inference.
In an action against the administrator of the estate of the maker of a note for $500 payable on demand, the answer was a general denial and an allegation of payment. At the trial, the plaintiff took the stand and was subjected to cross-examination, and testified that the note was secured by a mortgage of personal property, that within a year after the note was given he took possession of the mortgaged property and "right afterwards" he sold it at public auction through an auctioneer and realized a net amount which he did not remember but which was about $40 or $50. The mortgage was not introduced in evidence and there was no evidence as to its terms or whether the plaintiff had made any demand for payment of the note or notified the maker of his intention to take possession of or to sell the property, or any other testimony as to what was done in connection with taking possession and selling the property. The judge ordered that, if the jury found for the plaintiff, they should deduct $50 from the face of the
note. There was a verdict for the plaintiff.
(1) The plaintiff's testimony did not compel nor even warrant the conclusion that in taking possession of the mortgaged property and selling it the plaintiff so acted that, as matter of law, he was not entitled to recover any deficiency on the note after applying the proceeds of the sale;
(2) The plaintiff's failure to introduce further evidence in his own behalf when there was no evidence given by others adversely affecting his rights or interests which it was necessary that he control or explain did not warrant inferences unfavorable to him;
(3) A contention by the defendant that the plaintiff's dealings with the mortgaged property prevented recovery was, in substance, a defence of payment, and the burden of establishing it was on the defendant;
(4) In the absence of evidence of the terms of the mortgage, a ruling, that the acts of the plaintiff in taking possession of and selling the mortgaged property required that a verdict be ordered for the defendant, properly was refused;
(5) It was proper to refuse to order a verdict for the defendant.
CONTRACT upon a promissory note for $500. Writ dated August 2, 1926. In the Superior Court, the action was tried before Williams, J. Material evidence and requests by the defendant for rulings are described in the opinion. The judge instructed the jury that, if they should find for the plaintiff, they should deduct $50 from the face of the note and find for the plaintiff for $450 and interest thereon from the date of the note. The jury found for the plaintiff in the sum of $942. The trial judge, upon the agreement stated in the opinion, reported the action for determination by this court.
F.L. Norton, for the defendant. J.H. Duffy, for the plaintiff.
This is an action upon a promissory note alleged to have been given by the defendant's intestate to the plaintiff. The answer was a general denial and a plea of payment. The defendant moved for a directed verdict and made the following requests for rulings: "1, If the note in suit was secured by a chattel mortgage and the plaintiff took possession of the chattels and sold them but did not foreclose the mortgage by sale in accordance with its terms, he cannot recover. 2. If the note in suit was secured by chattel mortgage and the plaintiff took possession of the mortgaged property and attempted to foreclose the mortgage by possession and notice under the statute, then, whether he did or did not comply with the terms of the statute, he is not entitled to recover.
3. If the note in suit was secured by a chattel mortgage and plaintiff took possession of the mortgaged property, the burden is on plaintiff to show that the mortgage was legally foreclosed.
" The defendant's motion for a directed verdict and her requests for rulings were denied. The jury returned a verdict for the plaintiff.
The judge reported the case "upon the agreement of the parties that if the denial of the motion for a directed verdict and the denial of defendant's requests for rulings was correct, judgment shall be entered for the plaintiff upon the verdict."
The plaintiff testified that the note, which was for $500 payable on demand with interest, was given by the defendant's intestate and that it was secured by a mortgage of personal property owned by the defendant's intestate. He testified that within a year after the note was given he took possession of the mortgaged property, and "right afterwards" he sold it at public auction through an auctioneer and realized a net amount which he did not remember but which was about $40 or $50. The mortgage was not introduced. There was no evidence as to its terms or whether the plaintiff had made any demand for payment of the note or notified the maker of his intention to take...
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