Howland v. Rooke

158 Mass. 590 | Mass. | 1893

Barker, J.

The single question raised by the plaintiffs is whether, upon the evidence, a compromise settlement made by the parties on October 29, 1890, was final and absolute, or conditional. One of the plaintiffs and the defendant were the only witnesses examined, and their testimony was contradictory. But they both testified that, at the time of the settlement, the plaintiffs gave the defendant a negotiable promissory note with collateral security for the amount agreed upon; that when the note became due a portion of it was paid and the balance was renewed ; and that payments of different amounts were subsequently made from time to time. The exhibits show no trace of any condition annexed to the settlement, although they indicate that both parties afterwards claimed that some items had not been considered in arriving at the compromise. Upon the whole, the documentary evidence bears strongly in favor of the defendant, who, at the time of the settlement, dismissed an action previously brought to recover the claims which he compromised. In addition, the plaintiff, who testified in this case that the settlement was conditional, admitted, upon cross-examination, that he had, on the day after it was made, testified in another case that he had paid the defendant in full all that he owed him by a payment equivalent to cash, giving him the bonds which the *592plaintiffs seek to redeem as collateral for a note which it was arranged should be discounted so that he could get the money. The weight of the evidence is not only so strongly in favor of the defendant as to support the decree, but also to convince us that the plaintiffs’ appeal is frivolous. The case calls for the imposition of double costs, and interest at the rate of twelve per cent by the year from the time when the appeal was taken, and the decree is to be affirmed with such modifications as are rendered necessary by the lapse of time and the order for double costs and interest. See St. 1883, c. 223, § 15. The modifications made necessary by this decision will be made in the Superior Court.

So ordered.