233 Mass. 16 | Mass. | 1919
This is an action on a promissory note made by the defendant and delivered to one Rubenstein, who transferred it to the plaintiff after maturity. The defence is want of consideration.
The history of the transaction between the parties so far as material to the determination of the issue involved is as follows: On March 1, 1915, a corporation known as the Dinsmore Power Process Company borrowed $590 from Rubenstein and gave to him its promissory note for that amount payable to his order in two months. The note was indorsed by the defendant and also by one Mintz. This note was renewed five times and a new note was given upon each renewal for the balance then due; the interest on the new note was paid in advance by the maker at the rate of three per cent a month, and the old note was delivered up to the maker for cancellation. On all the notes above referred to the defendant and Mintz were indorsers.
On March 6, 1916, a note was given to Rubenstein for the amount then due. The defendant Brown was the maker of this note, but it was not indorsed by Mintz nor was the Dinsmore Power Process Company a party to it. There were five renewals
While the questions presented have not been previously considered by this court, we are of opinion that it was the intention of the Legislature as expressed in the statute to make it applicable to loans of this kind. Under the statute, the giving of the notes from time to time for the amount then due did not constitute in each instance a new loan. The payments on account of principal and interest are to be treated as payments on account of the original loan, and not as separate and independent transactions. All the payments were made on account of the original sum borrowed; and, as the loan was for less than $1,000, and there has been paid on account thereof a sum exceeding the amount actually borrowed and a sum equal to $5 for the actual expenses •of making and securing the loan, it follows that when the note in suit was given the debt had been discharged; and as the note is without consideration no legal liability is imposed upon the de
It could not properly be found that there was a waiver by the borrower of any rights given by the statute. Undoubtedly the borrower could waive his rights if he saw fit to do so, as the statute was intended for his benefit. Reed v. Boston Loan Co. 160 Mass. 237. Shawmut Commercial Paper Co. v. Brigham, 211 Mass. 72. In Spofford v. State Loan Co. 208 Mass. 84, it was held that where a borrower executed to the lender a release of all his rights under the statute, he was bound thereby. That case is not an authority in favor of the plaintiff. Shawmut Commercial Paper Co. v. Brigham, supra, does not support the plaintiff’s contention. In that case the borrower had. not paid or tendered the full amount of the loan, and therefore could not take advantage of the statute. In the present case the note had been paid in full under the statute before the last note was given.
It being admitted that the lender has received payments sufficient to discharge the loan under the statute, it is immaterial that such payments have been made by different persons liable for the amount borrowed.
It follows that the order of the Appellate Division, that judgment be entered for the plaintiff for the amount therein stated with interest, must be reversed and judgment' entered for the defendant.
So ordered.