265 Mass. 98 | Mass. | 1928
This is an action of contract to recover the amount of a promissory note, with interest after maturity and costs of collection including an attorney’s fee of ten per cent of the amount of the note. The defence is payment.
The defendant Lillie borrowed money of the plaintiff for which he gave a note for $1,000 signed by himself and the other defendants, all signing as joint and several makers. The note was dated July 6, 1926, payable in fifty-two weeks after date with interest after maturity, plus all costs and expenses of collection, in case payment is not made when the obligation becomes due, “including attorney’s fee of ten per cent of said sum or a minimum fee of ten dollars if suit is brought”; and it recited that there has been deposited with the plaintiff as collateral security “Class ‘C’ certificates of investment of said Company, No. 867.” It further provided that upon “non-payment of any installment due the Company on any class C ’ certificate herewith hypothecated, when the same shall become payable, then this obligation shall become due and payable, without demand or notice”; and that “If, at the expiration of the period during which this obligation [on the note] is to run, all dues and fines for that period shall have been paid upon class ‘C’ certificates
At the trial the plaintiff offered in evidence a class C certificate numbered 867 dated August 5, 1926, for the amount of $1,000. Across its face are the words “This certificate is to be paid for in 11 consecutive monthly payments of $85 each, payable on or before the 5th day of each month and 1 payment of $65.” This certificate was not signed by any of the defendants, and Lillie testified that he never saw it.
At the time the plaintiff received the note from Lillie and paid him the money, the plaintiff gave Lillie a book containing twelve coupons, in which appeared a form of a Class C certificate. The coupons were numbered consecutively from 1 to 12, each bearing the certificate number and specifying that payment was to be made monthly, the first eleven payments being for $85 each and the twelfth for $65. Opposite each coupon was a stub on which appeared the following: “When properly stamped this stub is a receipt for the amount of your monthly payment which is applied on your instalment investment certificate.”
The defendant Lillie from time to time sent the plaintiff one of these coupons accompanied by a check for its amount, and the company received in all in this way $1,000. These remittances were entered by the plaintiff on the back of the class C certificate, some of them being a month or more overdue when made. The eleventh instalment on the certificate was due July 5, and was paid July 8, 1927. The last instalment on the certificate was due August 5, 1927, and was paid August 4, 1927. The writ was dated July 8, 1927. The court granted the plaintiff’s motion for a directed verdict for $1,000, with interest after maturity plus an attorney’s fee. To this order the defendants saved their exception.
Each payment made was accompanied by a coupon showing that the check was to be applied to an instalment due on the investment certificate numbered 867, and each was so applied by the plaintiff. None of them were payments on
The plaintiff was not required to resort to the collateral before bringing action on the note and, when action was begun, the defendants had not performed the required conditions to entitle them to have the money paid on the certificate applied to the discharge of the note. The payments on account of the certificate could not discharge the cause of action on the note until the collateral was applied to its payment. The order directing a verdict for the plaintiff was right.
Exceptions overruled.
