Bremner v. Hester

| Mass. | Mar 1, 1927

Wait, J.

This is an action upon a judgment. The defendants have brought before us exceptions to a ruling excluding evidence offered to show that before the entry of the judgment the parties had made accord and satisfaction, and to an order directing a verdict for the plaintiff. They have argued the question of evidence only, and we must, therefore, in accord with our practice, treat the other exception as waived. Commonwealth v. Dyer, 243 Mass. 472" court="Mass." date_filed="1922-12-30" href="https://app.midpage.ai/document/commonwealth-v-dyer-6436054?utm_source=webapp" opinion_id="6436054">243 Mass. 472, 508. Commissioner of Banks v. Cosmopolitan Trust Co. 247 Mass. 334" court="Mass." date_filed="1924-01-04" href="https://app.midpage.ai/document/commissioner-of-banks-v-cosmopolitan-trust-co-6436477?utm_source=webapp" opinion_id="6436477">247 Mass. 334, 346. Silverman v. Rothfarb, 247 Mass. 456" court="Mass." date_filed="1924-01-19" href="https://app.midpage.ai/document/silverman-v-rothfarb-6436500?utm_source=webapp" opinion_id="6436500">247 Mass. 456, 458.

In an action upon a judgment evidence of an accord and satisfaction, made before the entry of judgment, is not admissible to defeat the suit. The entry of judgment imports a determination that no cause exists which makes the entry improper. This determination cannot be contradicted nor its propriety questioned except by exception, report or appeal in the same case, or by new proceedings for the purpose of vacating the judgment under G. L. c. 250, or by writ of error. Savage v. Welch, 246 Mass. 170" court="Mass." date_filed="1923-09-13" href="https://app.midpage.ai/document/savage-v-welch-6436328?utm_source=webapp" opinion_id="6436328">246 Mass. 170, 176. Heard v. Calkins, 234 Mass. 526" court="Mass." date_filed="1920-01-09" href="https://app.midpage.ai/document/heard-v-calkins-6434998?utm_source=webapp" opinion_id="6434998">234 Mass. 526. Joyce v. Thompson, 229 Mass. 106" court="Mass." date_filed="1918-01-04" href="https://app.midpage.ai/document/joyce-v-thompson-6434248?utm_source=webapp" opinion_id="6434248">229 Mass. 106. Barton v. Radclyffe, 149 Mass. 275" court="Mass." date_filed="1889-05-11" href="https://app.midpage.ai/document/barton-v-radclyffe-6423149?utm_source=webapp" opinion_id="6423149">149 Mass. 275. Mowry v. Chase, 100 Mass. 79" court="Mass." date_filed="1868-10-15" href="https://app.midpage.ai/document/mowry-v-chase-6415446?utm_source=webapp" opinion_id="6415446">100 Mass. 79. Loring v. Mansfield, 17 Mass. 394" court="Mass." date_filed="1821-10-15" href="https://app.midpage.ai/document/loring-v-mansfield-6404998?utm_source=webapp" opinion_id="6404998">17 Mass. 394. Thatcher v. Gammon, 12 Mass. 268. “If the defendant would avoid the effect of the judgment, he must do so by procuring the judgment itself to be vacated.” Hendrick v. Whittemore, 105 Mass. 23" court="Mass." date_filed="1870-09-15" href="https://app.midpage.ai/document/hendrick-v-whittemore-6416109?utm_source=webapp" opinion_id="6416109">105 Mass. 23, 30.

There is nothing here to show that the accord and satisfaction, if ever made, could not have been pleaded before trial was held in the original suit in 1905, R. L. c. 173, § 33; or that anything in the nature of deceit was practised on the defendants which would bring the case within the principles illustrated by Brooks v. Twitchell, 182 Mass. 443" court="Mass." date_filed="1903-01-07" href="https://app.midpage.ai/document/brooks-v-twitchell-6428064?utm_source=webapp" opinion_id="6428064">182 Mass. 443.

We see no reason why a failure to set up an alleged accord and satisfaction, carried out before entry of judgment, should be treated with greater leniency than failure in an action on a promissory note to set up payments on the note made before the trial. The reasons stated in Loring v. Mansfield, supra, are as compelling in the former as in the latter situation. The salutary rule of law which forbids the contradiction of a judgment is not to be avoided by calling the contradiction an equitable defence. See Barton v. Radclyffe, supra; Brooks v. Twitchell, supra.

No question of the jurisdiction of the court to enter the original judgment has been raised. See Hendrick v. Whittemore, supra.

Exceptions overruled.