Sutherland v. MacLeod

• Decision Date: 01 April 1942
• Citation: 311 Mass. 295,41 N.E.2d 9
• Parties: SUTHERLAND v. MacLEOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 295

41 N.E.2d 9

SUTHERLAND

v.MacLEOD.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1942.

Report from Municipal Court of Boston; Donovan, Judge.

Action of contract in the Municipal Court of Boston by Margaret (MacLeod) Sutherland against Amelia A. MacLeod, to recover on two notes. There was a finding for plaintiff. Requests for rulings were denied. A report to the Appellate Division was dismissed, and defendant appeals.

Order dismissing report affirmed.

Before FIELD, C. J., and DONAHUE, QUA, and RONAN, JJ.

E. B. Austin, of Quincy, for plaintiff.

C. F. Glendon, of Brookline, for defendant.

FIELD, Chief Justice.

This action of contract was brought in the Municipal Court of the City of Boston on March 11, 1941, to recover on two promissory notes, each dated in 1915. The defendant pleaded general denial and the statute of limitations. There was a finding for the plaintiff. Requests for rulings to the effect that recovery was barred by the statute of limitations were denied. A report to the Appellate Division was dismissed and the defendant appealed.

There was no error in the denial of the requests for rulings.

The burden of proving that the action was seasonably commenced was on the plaintiff. Lariviere v. Lariviere, 304 Mass. 627, 628, 24 N.E.2D 659. Whether the evidence warranted a finding that this burden was sustained depends upon whether on such evidence it could have been found that the case was taken out of the operation of the statute by part payment within six years prior to the commencement of the action. See G.L.(Ter.Ed.) c. 260, § 2, First. No other question is presented by the report.

The report recites that there was evidence tending to show, and the trial judge found, that ‘in 1937 and for the purpose of enabling the defendant to make payments on account of the notes involved in this action plaintiff and defendant made an oral agreement by the terms of which defendant agreed to furnish the plaintiff with room and board at the rate of * * * $7 per week (and did so for eithty-four or eighty-five weeks) and the plaintiff agreed to apply (and did apply) that sum from week to week as payments on account of said notes, that in this manner the defendant paid and received credit in the sum of * * * $587 on account of said notes.’ Apart from this recital the evidence is set forth in considerable detail. Obviously on this recital, construed strictly, the evidence was sufficient to support the findings since the evidence and the findings were coëxtensive. But even the evidence stated elsewhere in the report in greater detail, though contradictory, warranted the findings recited, subject, at most, to the limitation that the payments referred to in the findings were to be applied to interest on the notes, rather than ‘on account of the notes' generally. This limitation, however, would have no material bearing upon the question whether the rulings requested-based upon the evidence-were denied rightly. A part payment on account of interest, meeting the other requirements of law, would have the same effect upon the operation of the statute as a part payment on account of the notes generally. Sigourney v. Wetherell, 6 Metc. 553, 564;Lariviere v. Lariviere, 304 Mass. 627, 628, 629, 24 N.E.2D 659. The further finding of the trial judge that the ‘defendant never in writing acknowledged or promised to pay notes after statute had run against them’ was clearly permissible. Indeed, there was no evidence warranting a finding to the contrary. It is apparent that the facts relied on to take the case out of the operation of the statute arose, according to the evidence, within six years prior to the commencement of the action.

Even though the statute of limitations had already run in favor of the defendant against her obligation upon the notes when this action was brought, a part payment on account of the notes or of the interest thereon might take the case out of the operation of the statute up to the time of such part payment. The statute might be waived by part payment. Alpert v. Radner, 293 Mass. 109, 111, 199 N.E. 407. Like principles apply when the part payment is made specifically on a debt barred (see Pond v. Williams, 1 Gray 630, 635;Ramsay v. Warner, 97 Mass. 8, 14) as in a case where such a part payment is made before the...