Gardner Savings Bank v. Arts Foundation of Boston, Inc.

139 N.E.2d 525, 335 Mass. 763, 1957 Mass. LEXIS 702

• Court: Massachusetts Supreme Judicial Court
• Decided: January 7, 1957
• Status: Published

Opinion

Decree affirmed with costs of the appeal.- This is an appeal from a final decree under the soldiers’ and sailors’ civil relief act of 1940, U. S. C. (1952 ed.) Title 50, Appendix, § 532, permitting the plaintiff to enter and sell under a mortgage given to it by the defendant and upon which there was a balance due of 828,500. The note called for the payments of monthly instalments. It also contained an acceleration clause making the unpaid principal due upon the failure to pay a monthly instalment within thirty days of its due date. After a number of such failures the bank has refused to accept subsequent instalments. There was no error. American House Hotel Co. v. Hemenway, 237 Mass. 180. Greene v. Richards, 244 Mass. 495. Charlestown Five Cents Savings Bank v. Zeff, 275 Mass. 408, 411. After the close of the evidence, by an interlocutory decree the bill of complaint was taken “pro confesso” against Alfred H. Avery, as trustee under an indenture and deed of trust, with the consent of said Avery. He did not appeal from the interlocutory decree but he has joined in the appeal from the final decree. Avery became liable as guarantor on the mortgage note on the facts established as true which were properly pleaded and which required the decree which was entered against him. Matek v. Matek, 318 Mass. 677. Shoolman v. Wales Manuf. Co. 331 Mass. 211.

The case was submitted on briefs. Herbert S. Avery, for the defendants The Arts Foundation of Boston, Inc., and another. Edward B. Cass & Roger E. Perry, for the plaintiff.