Whitney v. Metallic Window Screen Mfg. Co.

• Decision Date: 04 March 1905
• Citation: 73 N.E. 663,187 Mass. 557
• Parties: WHITNEY et al. v. METALLIC WINDOW SCREEN MFG. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 557

73 N.E. 663

WHITNEY et al. v. METALLIC WINDOW SCREEN MFG. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1905

COUNSEL

Chas F. Jenney and Sumner Robinson, for complainants.

J. M Browne, for respondents.

OPINION

LATHROP, J.

This is a bill in equity filed in the superior court on April 18 1900, by the trustees under the will of Asa Whitney against the Metallic Window Screen Manufacturing Company and the administrators of the estate of John J. Merrill to redeem a parcel of land in Winchester from a mortgage. After an answer and a replication had been filed, the case was sent to a master, who made certain findings of fact and rulings of law. Exceptions were filed by the defendants, which were heard and overruled by a judge of the superior court, who entered a decree, dated April 30, 1904, that the plaintiffs were entitled to redeem by paying to the administrators of the estate of Merrill the sum of $1,566.14, with interest from January 1, 1899, at the rate of 5 per cent. per annum, and that on payment the first-named defendant should at once surrender possession of the premises. It appears from the master's report that on January 20, 1893, the mortgage in question was executed by Frederick O. Snow to the Medford Savings Bank for $4,000, payable in three years from date, with interest at the rate of 5 per cent. per annum during the term, and for such further time as the principal sum, or any part thereof, should remain unpaid. Subsequently in the same year the mill on the mortgaged premises and a house were burned, and after this, on October 25, 1893, the mortgagee assigned the mortgage, for the consideration of $4,000, and $52.78 interest, to one Kendall. On March 20, 1895, $2,767.20 was received from insurance companies on account of the loss by fire of the mill and house, and paid to Kendall on account of the mortgage, and in partial payment thereof. On April 9, 1895, Snow conveyed the real estate, subject to the mortgage, to the first-named defendant. In January, 1896, Kendall assigned the mortgage to John J. Merrill 'in consideration of the balance of the mortgage due,' and the sum of $1,699 was paid to Kendall for such assignment. On January 20, 1898, Merrill made a release of a part of the mortgaged premises to the first-named defendant, which conveyed the part so released to the Boston & Lowell Railroad Company. On January 29, 1898, Snow was paid by the Boston & Lowell Railroad Company the sum of $1,360, but no part of this sum was applied in reduction of the principal of the mortgage. On March 28, 1899, the plaintiffs attached the unreleased property in an action against the firstnamed defendant, and recovered judgment in the sum of $2,442.23. Execution issued therefor, on which $21.91 was paid in part satisfaction. On March 20, 1900, the right, title, and interest which the first- named defendant had on March 28, 1899, was taken on execution, and later was sold to Arthur E. Whitney, who was acting in behalf of the plaintiffs, and subsequently he was made a party plaintiff.

The principal contention of the defendants before the master was that Merrill, before the attachment of the plaintiffs advanced $1,338, at the request of the first-named defendant, to build a factory on the premises covered by the original mortgage, under an agreement made by Merrill and Snow, acting for the first-named defendant, that the money so advanced by Merrill should be covered by the security of the original $4,000 mortgage, and that the plaintiffs should pay $1,338, with interest, in addition to the balance remaining due and unpaid on the original mortgage. On this the master found that after the mill and the house were burned, and while Merrill held the mortgage, and before the attachment of the plaintiffs, he (Merrill) advanced certain sums of money, which were used in building a factory on the premises covered by the mortgage; that that transaction was a loan by Merrill to Snow, the president of the first-named defendant. The master further found that the first-named defendant did not make, or duly authorize any person in its behalf to make, any specific or definite agreement with Merrill whereby Merrill should advance or...