313 Mass. 577 | Mass. | 1943
The defendant has saved exceptions to the refusal of the judge to direct verdicts for it in two actions,
The plaintiff, on February 1, 1936, purchased from the defendant certain premises consisting of a building containing twenty-six apartments, four stores, and a brick barn used for a garage,' for $35,000, which he paid for by a note for this amount, payable on demand and secured by a mortgage. As a part of the transaction the parties executed an agreement, hereinafter referred to as the first rent agreement, with reference to the payment of a part of the rents collected by the plaintiff. This agreement, after reciting that its consideration was the delivery of the deed to the plaintiff and the acceptance by the defendant of his note secured by a mortgage, required the plaintiff to pay $300 each month “from the revenue of said property”; certain portions of these monthly payments were to be allocated, in certain amounts representing one twelfth of the annual interest on the mortgage and taxes and a fixed amount for water and insurance, to the payment of these carrying charges of the property and the balance, if any, at the end of the year was to be applied to the principal of the note. The plaintiff was to permit the defendant to inspect his books of account dealing with the property. He was not to make any major repairs without the prior written approval of the defendant. The defendant agreed to credit and apply the monthly payments in the manner stated. This rent agreement also contained the following provision: “Nothing in this agreement shall be construed to interfer [sic] in any way with the provisions and powers contained in the first mortgage given by” the plaintiff to the defendant. This agreement continued in force until June 15, 1937, when it was superseded by a second rent agreement similar in all respects to the previous agreement except that it called for monthly payments of $320.
The rents were attached on June 26, 1937, in a trustee process brought against the plaintiff and his wife. The plaintiff consulted counsel who testified that, in accordance with the plaintiff’s directions, a request was made upon the
The plaintiff contends that he performed and observed all that he was required to do under the second rent agreement; that by virtue of this agreement there was no breach of the mortgage; and that he was entitled to recover both in contract and in tort for damages resulting from this alleged unauthorized foreclosure of the mortgage.
The note, mortgage and the first rent agreement were all
An indebtedness evidenced by a demand note becomes due as soon as the note is delivered. An action for its collection may be maintained without any previous demand. Farmers National Bank v. Venner, 192 Mass. 531. Goodfellow v. Farnham, 239 Mass. 590. Forastiere v. Springfield Institution for Savings, 303 Mass. 101. The mortgage given by the plaintiff does not appear in the record, but the statement in the bill of exceptions that the mortgage was “a statutory-form mortgage upon the statutory condition” we interpret to mean that the mortgage was in the form set forth in G. L. (Ter. Ed.) c. 183, § 55 (5). A mortgage in that form would have the force and effect attributed to it by virtue of G. L. (Ter. Ed.) c. 183, §§ 19-21. The mortgage must therefore be assumed to state that it was given as security for the payment of the demand note. The note was due without a demand, and we do not think that a demand for payment was a condition precedent to the exercise of the power of sale contained in the mortgage. In Alden v. Lincoln, 13 Met. 204, an action of trover by the mortgagee against an officer who had attached and sold the goods that were mortgaged as security for the payment of a demand note, it was contended that as the plaintiff had not made any demand upon the mortgagor the former had no right of possession. In answer to that contention this court said (page 209): “We are, however, of opinion that no demand on the mortgagor was necessary.” The court distiiiguished that case from Forbes v. Parker, 16 Pick. 462, where the note was not dp.e when the attach
Our next inquiry is to determine whether the right to foreclose was suspended by the second rent agreement. We assume for the purpose of argument in favor of the plaintiff that this agreement could be found to be in effect when the foreclosure proceedings occurred. This agreement did not in terms fix its duration as a year. We need not decide whether, if that provision stood alone, it could be construed as implying such a period of time, in view of the fact that any surplus over expenses was to be applied to the principal and in view of the letter of June 11, 1937, of the defendant’s treasurer, because the provision in question is only a part of the second rent agreement. The construction of the agreement was for the court. Farber v. Mutual Life Ins. Co. 250 Mass. 250. Bresky v. Rosenberg, 256 Mass. 66. The intention of the parties must be ascertained from an interpretation of the entire instrument. Bray v. Hickman, 263 Mass. 409. Malden Knitting Mills v. United States Rubber Co. 301 Mass. 229. Burns v. Great Atlantic & Pacific Tea Co. 312 Mass. 551. The agreement expressly forbade any construction that would interfere with any of the provisions and powers contained in the mortgage. No effect could be given to the rent agreement that would result in the extension of the mortgage. The plaintiff points out that the provision in the- rent agreement referred only to the mortgage and not to the note. But the note and mortgage must -be
It follows that the motion for a directed verdict in each case should have been granted; the defendant’s exceptions are sustained and judgment in each case must be entered for the defendant.
So ordered.