Trahant v. Perry
| Decision Date | 16 October 1925 |
| Citation | 253 Mass. 486 |
| Parties | REBECCA C. TRAHANT v. ARTHUR C. PERRY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 22, 1925.
Present: RUGG, C.
J., CROSBY, PIERCE CARROLL, & SANDERSON, JJ.
Equity Jurisdiction, To enjoin foreclosure of mortgage. Bills and Notes. Evidence, Extrinsic affecting writings.
If, at the hearing of a suit in equity to enjoin the foreclosure of a mortgage of real estate given to secure a note, payable in instalments at specified times, it appeared that the plaintiff voluntarily made and delivered the note without fraud on the part of the defendant, evidence is not admissible to show that at the time the plaintiff was signing the note he asked the defendant if he could pay the whole of it at any time and that the defendant replied that he could do so. The note which the mortgage above described was given to secure was for $500 at twelve per cent interest and called for payments of $15 each
month. For six months the plaintiff made no payments.
In the seventh month he made two payments of $12 each. In the eleventh month he tendered $405 which, with what he had paid, was nearly $5 more than the amount which the defendant had advanced to the plaintiff. The tender was refused on the ground that the defendant would receive payment in no other way than that called for by the note. The bill was dismissed.
Held, that (1) The defendant's refusal of tender was within his legal right;
(2) A master who found the facts above described was not required more specifically to find a breach in the condition of the mortgage;
(3) The bill properly was dismissed.
A note payable in instalments at specified times is really so many instruments in one form, and the times of payment in such a note constitute a condition for the benefit of all parties to it a debtor cannot by tender compel the holder to accept payment of an instalment before it is due, or of the full sum before the maturity of the several obligations.
BILL IN EQUITY filed in the Superior Court on January 3, 1914, to enjoin the foreclosure of a mortgage of real estate in Worcester, for an accounting, and for a discharge of the mortgage.
The suit was referred to a master. Material findings by the master are described in the opinion. Exceptions by the plaintiff to the master's report were heard by Qua, J., by whose order there were entered an interlocutory decree overruling exceptions and confirming the report, and a final decree dismissing the bill. The plaintiff appealed.
The case was submitted on briefs. F.B. Hall, for the plaintiff.
R.B. Dodge & A.T. Saunders, for the defendant.
This is an appeal from a decree overruling the plaintiff's exceptions to the master's report, and from the final decree dismissing the bill.
The exception to the refusal of the master to receive evidence "that at the time the plaintiff was signing the note in the defendant's office she asked the defendant if she could pay the whole of it any time, and that he replied that she could do so," was overruled rightly. The plaintiff having voluntarily made and delivered this note cannot defend against it by showing an oral agreement that it should be paid in any other way than that stated in the note itself. Tower v. Richardson, 6 Allen, 351. Wood's Sons Co. v. Schaefer, 173 Mass. 443 . McCusker v. Geiger, 195 Mass. 46, 53.
The note, in the following tenor: "$500.00/100 Worcester, Mass. June 7th 1912. For Value Received, We,
Rebecca C. Trahant and Dominick Trahant, jointly and severally Promise to pay to . . . Arthur C. Perry . . . or order, in U.S. gold coin of present standard of weight and fineness, the sum of . . .
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