Trafton v. Custeau
| Decision Date | 12 January 1959 |
| Citation | 155 N.E.2d 159,338 Mass. 305 |
| Parties | Edwin R. TRAFTON, Executor, v. Elsie M. CUSTEAU. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William J. Ryter, Dorchester, for plaintiff.
Anthony Brayton, Boston, for defendant.
Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
This is an action of contract in three counts upon an indebtedness originally arising out of a loan made by the plaintiff's testate to the defendant. The case is here upon the plaintiff's exceptions to the direction of verdicts for the defendant upon all three counts of the declaration.
The salient facts are these: On December 4, 1953, Archibald Fraser, the plaintiff's testator, a man then seventy-five years of age but deceased since the trial (hereinafter called the plaintiff), lent the sum of $2,175 to the defendant with whom he had been on friendly terms for years and whom he treated 'like a daughter.' In return he took an interest free note payable in twenty-two years from that date with annual payments of $100 on principal. He also took a second mortgage on the defendant's house in West Roxbury to secure the note. The mortgage was not recorded. Payments of $100 each were made on the first and second anniversaries of the date of the note, on December 4, 1954, and on December 4, 1955. Sometime in 1956 the defendant was negotiating for the sale of her house on which the plaintiff held the unrecorded mortgage. On July 20 of that year, the defendant wrote the plaintiff in part: It is clear that by 'the deed' she meant the mortgage deed held by the plaintiff. She testified at the trial: 'I was all confused at the time, and I didn't know the difference between a deed and a mortgage note * * *.' In answer to her letter the plaintiff sent the mortgage deed to her by mail. At the time when the defendant wrote the letter asking for its return and promising to 'settle with' the plaintiff after she had sold her house, no payments were due on the note. The defendant testified that by the word 'settle' she 'thought that if there was anything due on the mortgage note, when I passed the papers, that I would pay Mr. Fraser, but I didn't know that I owed anything on the note or not.' The plaintiff testified, however, that when he next saw the defendant after he had mailed her the mortgage deed, 'I told her I'd been there [at her new address] for my money.' He also testified that he sent her the mortgage in reliance upon her promise to 'settle' with him, that is, to pay the loan.
A suggestion of death of the plaintiff on December 14, 1957, was filed and the executor has prosecuted these exceptions.
We are of the opinion that there was error in the ordering of verdicts for the defendant on the first and third counts.
There was evidence that the defendant believed that the return of the unrecorded mortgage would facilitate the contemplated sale of her house and stated that if the plaintiff would give her the mortgage 'I will settle with you.' The jury could disbelieve her explanation that she did not know the difference between a deed and a mortgage note, as they could find that she already had previous experience with a savings bank which held the first mortgage upon the same premises, and that she had already made two payments on the instant mortgage. The jury could find that she knew the relationship between the note and mortgage she had given the plaintiff.
The defendant contends that there was no agreement for the acceleration of the payment of the mortgage indebtedness and that if any arrangement was made concerning that loan it was too vague and indefinite to constitute a contract. Both parties testified as to their intentions in the transaction which resulted in the return of the...
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