282 Mass. 463 | Mass. | 1933
The plaintiff as payee and holder has brought suit on an unsecured promissory note for $5,000, payable on demand and dated October 30, 1929. It was given for the accommodation of the defendant Lundsten and was signed as maker by J and L Tool Company, a partnership composed of the defendants Johnson and Lundsten, each of whom indorsed the note before delivery. The plaintiff at the time held a $20,000 note, secured by the deposit of collateral, given by Lundsten for a personal loan which had been made to him by the plaintiff in April, 1929. Upon receipt of the note for $5,000 here in suit the plaintiff credited on Lundsten’s $20,000 note the payment of $5,000. The case was heard by a judge of the Superior Court sitting without jury who found for the plaintiff in the sum of $5,000 and interest. The case comes to this court on the defendants’ exceptions to the refusal of the judge to give certain rulings requested by the defendants.
1. The note was in terms payable at the place of business of the plaintiff. All parties agreed when the note was made that interest thereon should be paid monthly by deducting the amount thereof from the checking account kept by the partnership with the plaintiff. For seven months the interest was so paid without objection and debit slips indicating the payment were sent monthly to the partnership. In June, 1930, the partnership account was withdrawn from the plaintiff trust company. When asked by the plaintiff as to the reason for the withdrawal of the account the defendant Johnson stated that he was not going to pay the note or the interest on it. Demand for payment of the note was not made on the partnership maker and notice of dishonor was not given the defendant indorsers. It is not argued that these circumstances avail the defendant Johnson but it is contended that the defendant Lundsten is thereby relieved from liability on the note. That contention is based on the fact that Lundsten’s sig
2. The defendants contend that by reason of the plaintiff’s dealings with reference to three hundred shares of Cities Service stock which was included in the collateral deposited by Lundsten as security for his note of $20,000, the judge was not warranted in finding for the. plaintiff on the note here in suit. Assuming without deciding that the matter relied on by the defendants is open on the pleadings, the contention cannot be sustained. By the application of the proceeds from the sale by the plaintiff of other securi
Lundsten, although requested by the plaintiff so to do, refused to file a claim in receivership proceedings for the amount received by the brokers on the sale of the Cities Service stock. Thereupon the plaintiff itself filed such claim. Later a composition offer was made by the brokers to their creditors. The plaintiff accepted the offer and received thereunder $621.77 in cash and certain obligations of the brokers. These obligations taken at their face
Exceptions overruled.