258 Mass. 525 | Mass. | 1927
This is an action by the payee of a promissory note given by the defendant for money lent. The defendant offered to prove that, at the time the note was given, he pledged a certificate of stock as security for its payment and the parties orally agreed that if, at its maturity, the note was not paid by the defendant he should forfeit all right to the stock and should be under no liability upon the note. The judge ruled that the evidence offered did not .constitute a defence to the action. The only question presented is, whether that ruling was right.
The note was an unconditional promise to pay in money; proof of a contemporaneous oral agreement that it should not be so paid varies the terms of the note and, under well settled principles of law, would not be a defence to the action. McCusker v. Geiger, 195 Mass. 46, 53. Zielmann v. Copelof, 232 Mass. 393, 396. Trahant v. Perry, 253 Mass. 486. Pelonsky v. Wattendorf, 255 Mass. 558.
In First National Bank v. Watkins, 154 Mass. 385, the agreement to look only to the mortgaged property was made upon a valid consideration after the note was given.
These exceptions appear to be frivolous, and double costs are awarded against the defendant from August 10, 1926, the time when the exceptions were allowed, and also interest at the rate of twelve per cent a year from the same time. G. L. c. 211, § 10.
So ordered.