205 Mass. 576 | Mass. | 1910
Two notices were given, the first on September 24,1907, and the second on October 22 of the same year. At the trial it appeared that the mortgage named in the first notice did not apply to the goods under attachment, and that the amount stated in the notice was not a just and true account of the amount due the mortgagee; and therefore, in consonance with the contention of the defendant and the concession of the plaintiff, the judge ruled that the notice was bad. The case was submitted to the jury upon the validity of the second notice.
Inasmuch as the plaintiff did not contend that the first notice was good, the objections to it are of importance only as they bear upon the validity of the second notice. And this bearing of "the first notice upon the validity of the second arises not simply out of the fact that the first paper was a notice but from the fact that it was an act of the plaintiff. The cases cited by the defendant are cases where the plaintiff has relied only upon the notice alleged therein to have been invalid, and they have only the most remote bearing in a case like this, where the plaintiff does not rely upon the notice containing the defects but upon another and different one. It is well to have this distinction in mind in considering the validity of the second notice.
The objection urged against the validity of this notice is that it was not given in time. No time within which notice must be given is prescribed by the statute, but it must be given within
The jury might have found upon the evidence that the plaintiff supposed that the first notice was good, that the errors were inadvertently made with no intention to mislead, that as soon as the plaintiff became aware that the notice was bad it took measures to give a second notice, and that this was given with reasonable promptitude after it discovered the mistakes in the first, that the delay on the part of the plaintiff was with no intent to injure or prejudice the defendant in any way, but was due entirely to inadvertence, and that no new rights had intervened between the attachment and the notice. And, if they believed the plaintiff’s version of the telephonic conversation between its treasurer and the defendant, they might further have found that it was from the first the determination of the attaching creditor, in accordance with whose directions the defendant was acting, to hold the property “ anyhow ” whether there was any mortgage upon it or not, and take his chances of ever being required to pay the mortgage debt. And they might have found farther, as a fair inference from these findings and from the other circumstances of the case, including the fact that the value of the property was less than the mortgage debt, that the delay was in no way prejudicial to the defendant, and that he did nothing which he would not have done had the notice been sooner given. Upon such findings it could not have been ruled as matter of law that the notice was not given in time. The second, third, fourth and fifth requests were therefore properly refused. Johnson v. Sumner, 1 Met. 172 (in which the case for the plaintiff was much weaker
Exceptions overruled.