238 Mass. 580 | Mass. | 1921
A mortgage of personal property in the sum of $1,485 was executed and delivered to the defendant by the plaintiff David Glassman and his partner Walker. This mortgage was subsequently satisfied and discharged. After Walker had sold his interest in the property Barney Glassman became a partner of his brother David. On or about October 15, 1915, the plaintiffs gave the defendant apersonal property mortgage for $5,000 — the defendant agreeing in 'writing to advance $2,500 — with which
On December 9, 1915, the mortgage for $3,900 was discharged and a mortgage for $3,305 was executed covering thirty-two cows, horses, wagons and other personal property, to secure, according to its terms, a promissory note of the same date of $3,305, payable in monthly instalments of $50 each, the first payment to be due December 20, 1915, with- interest monthly.
The auditor found that the plaintiffs frequently requested the defendant to pay them under the terms of the written agreements but that the defendant refused to advance the moneyas therein provided. But that there was no such request or failure after the execution of the mortgage of December 9, 1915; that payments were duly made to February 20, 1916, by the plaintiffs, and on March 17,1916, the defendant took possession of the property and on April 3,1916, sold it at public auction in accordance with the notice of the foreclosure sale for $1,701.80.
The auditor also found that while the defendant did not comply with the terms of the agreements entered into when mortgages for $5,000 and $3,900 were executed, he made no finding of damage and found that when the mortgage for $3,305 was executed the parties had an accounting and the amount due was agreed upon.
At the trial the auditor’s report was in evidence and the plaintiff Barney Glassman and the defendant testified. There was evidence from which the jury could find that the defendant did not comply with the terms of the written agreements entered into when the mortgages for $5,000 and $3,900 were executed, and failed to advance the money as agreed. There was also some evidence that the plaintiffs did not owe the sum of $3,305 when this last mortgage was given and that the defendant " was supposed to give me [the plaintiffs^ $700 or $800 to make up the $3,305; ”
The action was in contract or tort, and at the conclusion of the evidence a verdict was ordered for the defendant.
Although the auditor found that there was an accounting between the parties when the $3,305 mortgage dated December 9, 1915, was given, the jury could have found on all the evidence that there was no such accounting. It was not claimed that there was any account taken in writing, and it was for the jury to determine whether the parties then agreed on the sum due the defendant. Neither could it be ruled that the plaintiffs waived the defendant’s failure to perform the agreements accompanying the mortgages for $5,000 and $3,900. The relinquishment by the plaintiffs of their right to recover for whatever damages they suffered by reason of the defendant’s failure to live up to the agreement was a question of fact. See Boyden v. Hill, 198 Mass. 477, 486; McGrath v. Quinn, 218 Mass. 27; Title Guaranty & Surety Co. v. Fred T. Ley & Co. Inc. ante, 113.
If the defendant failed to carry out the agreement which formed the consideration of the $5,000 mortgage and this breach was not waived by the acts of the parties and the plaintiffs were damaged in consequence, they could recover under the first count of the declaration. . See Turpie v. Lowe, 114 Ind. 37, 54. And if the contract secured by the $3,900 mortgage, whereby the defendant was to advance money to the plaintiffs for the purpose of purchasing cows, was broken and the plaintiffs suffered loss or damage in consequence, they made out a case for the jury under the second count.
The plaintiffs could show by paroi that the consideration for the mortgage'of $3,305 was not the promissory note for the sum mentioned but was also to secure the future advances of money to the plaintiffs as testified by one plaintiff, Brouillard v. Stimpson, 201 Mass. 236, Saunders v. Dunn, 175 Mass. 164, and if there was a breach of this agreement resulting in damage to the plaintiffs, they could recover under proper pleadings.
Under the seventh count we think the plaintiffs do allege with sufficient accuracy the defendant’s unlawful act, in taking possession of the property before any breach of the covenants by the plaintiffs, and that there was evidence to support this contention. The promissory note for $3,305 was payable in monthly instalments of $50 each, payable on the twentieth day of each month, with interest payable at the same date at the rate of six per cent per annum. The last payment was made on February 20, 1916; the next payment was due on March 20, 1916. On March 17 the defendant took possession of the property covered by the mortgage, thereafter holding possession of the same until April 3 when the mortgaged property was sold at auction. The plaintiffs offered to show that on March 20 they tendered to the defendant the $50 due and the interest, which the defendant refused to accept and that by reason of defendant’s acts the plaintiffs suffered loss and damage.
Under the terms of the mortgage the plaintiffs were to retain possession of the mortgaged property, and to use and enjoy the same until default. When the defendant entered the plaintiffs’ premises and took possession of the property the plaintiffs were not in default. They had complied with the provisions of the
The offer of proof showed that on March 20 the plaintiffs made a tender of the amount due on the principal and interest; the defendant had no right in these circumstances to withhold possession from them and sell the goods when there was no default. Schayer v. Commonwealth Loan Co., supra.
Exception sustained.