Levine v. Cohen

126 N.E. 660, 235 Mass. 446, 1920 Mass. LEXIS 737

• Court: Massachusetts Supreme Judicial Court
• Decided: April 2, 1920
• Status: Published

Opinion

Jenney, J.

In this action, brought in the Municipal Court of the City of Boston upon a negotiable promissory note against one who had indorsed the note before delivery, the judge found without exception that the plaintiff, who was an indorsee for value, took the note subject to all equities between the original parties.

There was evidence tending to prove that the note was given in payment for a garage purchased at auction under a mortgagee’s sale. The report does not show what was included in the sale, or what were its terms. The judge found that there was no failure of consideration, and that the conditions of the sale were substantially complied with.

The case is here, after a finding for the plaintiff, on the defendant’s exceptions to the refusal to give four requests for rulings. Three, relating to claims of partial failure of consideration, were denied as inapplicable. The defendant thereby asked the trial judge to rule that such failure existed because gasoline tanks and fixtures were part of the realty or were not delivered to the purchaser or retained by him, and because the purchaser was obliged to expend money on the garage in order to procure a license permitting its use. On the meagre record it does not appear what, if anything, the subject matter of these requests had to do with the issues involved in the trial. Nothing is stated showing, or tending to show, their pertinency, or that the defendant was injured by their refusal. Hence no error appears in their denial. Canfield v. Canfield, 112 Mass. 233. Horton v. Cooley, 135 Mass. 589. Hansen v. Fitchburg & Leominster Street Railway, 222 Mass. 116.

The remaining request is as follows: “The action by the mortgagee Morrison in entering to foreclose the mortgage upon the premises since this suit was begun, to wit, on Monday, December 30, 1918, defeats this action if it is found that this plaintiff knew that the conditions of the original sale had not been complied with.” This was rightly denied. It is based on the assumption that the conditions of the sale had not been complied with. The judge, however, found to the contrary. Moreover, the considerations already stated when considering the other requests apply to this with equal force. The defendant does not argue his appeal so far as it relates to the denial of his motion made in the Appellate Division of the Municipal Court for a recommittal of the report, and it is treated as waived. See Cohen v. Berkowitz, 215 Mass. 68; Jackson Caldwell Co. v. Poto, ante, 58.

It follows that the order of the Appellate Division denying the motion to recommit the report and dismissing the same, must be affirmed; and it is

So ordered.