| Mass. | Dec 1, 1930
The declaration alleges that the defendant on or about November 28, 1919, executed and delivered to the plaintiff a certain agreement under seal, a copy of which was annexed to the declaration, by the terms of which the defendant agreed to pay to the plaintiff the sum of $2,250 in instalments, as therein set forth; and that the defendant has wholly neglected and refused to pay said sum or any part thereof. The answer pleads a general denial, payment, absence of consideration and the statute of limitations.
The agreement upon which the action is brought reads as follows: “Know all men by these presents That whereas there is now pending in the Superior Court for the County of Suffolk, an action wherein Max Finkelstein is the plaintiff, and Samuel L. Sneierson et al are the defendants, which action is numbered 93824 on the docket of said Court, and whereas the parties to said litigation have agreed to settle and adjust the same Now be it agreed that the said defendant Samuel L. Sneierson in said action agrees to pay to the said plaintiff Max Finkelstein, the sum of $2250, payable $100 on the twenty-eighth day of
At the trial in the Superior Court before a judge and jury the plaintiff testified that she was the administratrix of the estate of her husband, Max Finkelstein, and that she had often talked with him respecting the notes executed by the defendant. The plaintiff also produced as a witness a daughter of the intestate who testified that “ her father had stated about six years ago that he would buy or build a house when the Sneierson matter was settled.”
The defendant testified that he made payments in accordance with the terms of the agreement, occasionally making payments in amounts larger than the sum due monthly; that all payments were, made by checks, the final one for $200 being delivered in December, 1921, and
. The case was submitted to the jury solely upon the question of payment, the judge reserving leave to enter a verdict for the defendant if upon the questions raised, and the evidence introduced, such a verdict ought to be entered. A verdict was returned for the plaintiff for the amount set forth in the declaration, with interest; the judge, thereafter, entered a verdict for the defendant in accordance with the leave reserved. The case is before us on the plaintiff’s exceptions.
The action is brought, not upon the notes executed by the defendant, but upon the agreement hereinbefore set forth. This is plain from the allegation in the declaration and the evidence presented at the trial. The defendant’s contention that the plaintiff is not entitled to recover under the pleadings cannot be sustained. The action being based on a contract under seal, the defences of absence of consideration and the statute of limitations were not available to the defendant. G. L. c. 260, § 1.
The provision in the .agreement, that upon the failure of the defendant to make the stipulated monthly payments Finkelstein should have the right to immediate judgment, for the amount of the notes unpaid, is the subject of the contention between the parties. The defendant argues that this clause specified the plaintiff’s remedy in case of a breach, and that the remedy so given is exclusive. As to the effect of an express provision in a contract for a remedy in case of a breach, the authorities are in conflict, some holding that it is to be regarded as exclusive and others that it is to be settled by the intention of the parties as determined by a proper construction of the
The burden of proving payment was on the defendant. McGregory v. Prescott, 5 Cush. 67. Swift v. Boyd, 202 Mass. 26, 29. Although he offered evidence tending to show that the notes had been fully paid, the jury had a right to disbelieve that evidence in its entirety. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314" court="Mass." date_filed="1908-02-26" href="https://app.midpage.ai/document/lindenbaum-v-new-york-new-haven--hartford-railroad-6430113?utm_source=webapp" opinion_id="6430113">197 Mass. 314, 323. McGourty v. DeMarco, 200 Mass. 57" court="Mass." date_filed="1908-10-21" href="https://app.midpage.ai/document/mcgourty-v-demarco-6430399?utm_source=webapp" opinion_id="6430399">200 Mass. 57, 59. Cray v. Wells-Holmes Co. Inc. 258 Mass. 93" court="Mass." date_filed="1927-01-03" href="https://app.midpage.ai/document/cray-v-wells-holmes-co-6437789?utm_source=webapp" opinion_id="6437789">258 Mass. 93, 97. So
The verdict in favor of the plaintiff should have been allowed to stand. The entry must be
Exceptions sustained.
Verdict first returned by jury to stand. Judgment for plaintiff on verdict.