320 Mass. 428 | Mass. | 1946
At the foreclosure sale of a second mortgage held by the defendant, the plaintiff,, who held a third mortgage, bid $1,250 and paid $300, and the property was sold to him. A dispute arose as to certain charges made by
There was no error in crediting the defendant with the payment of $195.90 to the first mortgagee. One Rockwell, the manager of the defendant, had acted as broker in the purchase of the premises by one Casey, and had assisted Casey in acquiring a first mortgage for $7,000 from a cooperative bank and a second mortgage for $850 from the defendant. Rockwell thereafter managed the property for Casey with whom he was friendly. He had made personal loans to Casey. Rockwell made payments amounting to $195.90 to the first mortgagee, and this amount was paid to him by check of the defendant the day before the foreclosure sale. The plaintiff contended that this was merely the reimbursement of Rockwell for a personal loan to Casey and could not be made a charge against the proceeds of the foreclosure sale. But there was evidence, which the judge impliedly believed, that these payments by Rockwell were made under a guaranty by the defendant to reim
The payment of $1,000 to the clerk did not constitute a tender and thereafter relieve the plaintiff from the payment of interest on the amount found due the defendant. In the first place, the plaintiff who had already paid $300 never admitted that he owed the defendant $1,000 more, which was the sum he paid into court apparently in order to secure a deed of the premises. His bid at the foreclosure sale was $1,250 and not $1,300. The deposit with the clerk was security for the payment for the conveyance to the plaintiff and it was not placed at the disposal of the defendant. The defendant could not obtain it but had to await the decision of the court as to what part of it was to be paid to the defendant. The evidence does not show that any tender was made at common law, under the statute or under the rules of court. G. L. (Ter. Ed.) c. 232, § 12. Rules 42 and 43 of the Superior Court (1932). Currier v. Jordan, 117 Mass. 260. Noble v. Fagnant, 162 Mass. 275. Folsom v. Barrett, 180 Mass. 439. National Machine & Tool Co. v. Standard Shoe Machinery Co. 181 Mass. 275. Mondello v. Hanover Trust Co. 252 Mass. 563. Although the plaintiff has had the use and enjoyment of the premises since they were conveyed to him by the defendant, the
There is nothing in the plaintiff’s contention that interest should not have been awarded to the defendant because the judge found that the defendant was not entitled to all it claimed. It is true that the defendant was awarded $50 less than it claimed, but it is also true that it was awarded $248.55 more than the plaintiff alleged was due from him. The delay in stating the account was not attributable to the defendant alone, and it did not thereby lose its right to interest. Dodge v. Rockport, 199 Mass. 274. Royal Paper Box Co. v. Munro & Church Co. 284 Mass. 446.
One Reed, an attorney, furnished legal services to the defendant in the foreclosure of the mortgage in question. The fact that Reed was the president of the defendant did not bar him from recovering compensation for these services where, as here, the evidence shows that he had acted as counsel for the defendant and that his services were performed in such circumstances that both he and the defendant intended that that payment should be made. Bartlett v. Mystic River Corp. 151 Mass. 433. Fisk v. New England Tire & Supply Co. 244 Mass. 364. Calkins v. Wire Hardware Co. 267 Mass. 52. Shaw v. Harding, 306 Mass. 441. The mortgagee, having incurred expenses for attorney’s services, was entitled to be reimbursed for the amount found by the judge. Phillips v. Vorenberg, 259 Mass. 46, 72. City Institution for Savings v. Kelil, 262 Mass. 302, 308.
So ordered.
