Trahant v. Perry

149 N.E. 149, 253 Mass. 486, 1925 Mass. LEXIS 1260

• Court: Massachusetts Supreme Judicial Court
• Decided: October 16, 1925
• Status: Published

Opinion

Pierce, J.

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:

was found by the master, upon unreported evidence, not to have “been altered and changed by the defendant since its execution, as alleged in paragraph 5 of the plaintiff’s bill of complaint.”

It appeared in the bill of complaint, sworn to by the plaintiff, and was found by the master, that the plaintiff “made two payments on account of the same, as follows: Jan. 18, 1913 $12.00 Jan. 25, 1913 $12.00.” It further appeared in substance, in the bill of complaint and in the report of the master, that on May 8, 1913, an authorized attorney for the plaintiff after correspondence with the defendant went to the defendant’s office with $405 in bills, and offered to pay the same to the defendant for a discharge of the mortgage given to secure the payment of the note. The master finds that $405 was nearly $5 more than the amount which the defendant had advanced to the plaintiff, and twelve per cent interest on the same from the date of the note to said May 8,1913, less the $24 paid by the plaintiff on January 18 and 25, 1913. The master further finds that on May 8, 1913, the defendant refused to- accept the said $405 from the attorney for the plaintiff “giving as bis sole ground for refusing the same, that the plaintiff was obligated to pay at the rate of $15 a month, according to the tenor of the note, and that he would accept the payment in no other way.”

The refusal of the defendant was within his legal right. A note such as this, payable in instalments at specified times, is really so many instruments in one form. Eastman v. Turman, 24 Cal. 379. Oridge v. Sherborne, 11 M. & W. 374. The time of payment in a note is a condition for the benefit of all parties to it, and a debtor cannot by tender compel the holder to accept payment of an instalment before it is payable, or of the full sum to be ultimately paid, before the maturity of the several obligations. Saunders v. Frost, 5 Pick. 259, 267. Barrell v. Britton, 252 Mass. 504. Bowen v. Julius, 141 Ind. 310.

The sworn statement of the plaintiff in his bill of complaint, that he made two payments on account in 1913, establishes the fact of his default in monthly payments in the months preceding January, 1913, and thereafter, and he makes no claim of monthly payments other than resulted from his alleged tender in May, 1913. It follows that the master was not required more specifically to find a breach in the condition of this mortgage; and it further follows that the decrees, interlocutory and final, must be affirmed.

Decrees affirmed.