266 Mass. 403 | Mass. | 1929
This is an action upon a promissory note alleged to have been given by the defendant’s intestate to the plaintiff. The answer was a general denial and a plea of payment. The defendant moved for a directed verdict and made the following requests for rulings: “1. If the note in suit was secured by a chattel mortgage and the plaintiff took possession of the chattels and sold them but did not foreclose the mortgage by sale in accordance with its terms, he cannot
The judge reported the case “upon the agreement of the parties that if the denial of the motion for a directed verdict and the denial of defendant’s requests for rulings was correct, judgment shall be entered for the plaintiff upon the verdict.”
The plaintiff testified that the note, which was for $500 payable on demand with interest, was given by the defendant’s intestate and that it was secured by a mortgage of personal property owned by the defendant’s intestate. He testified that within a year after the note was given he took possession of the mortgaged property, and “right afterwards” he sold it at public auction through an auctioneer and realized a net amount which he did not remember but which was about $40 or $50. The mortgage was not introduced. There was no evidence as to its "terms or whether the plaintiff had made any demand for payment of the note or notified the maker of his intention to take possession or to sell the property or any other testimony as to what was done in connection with taking possession and selling the property.
If the testimony of the plaintiff (by which he is bound, Goodwin v. E. B. Nelson Grocery Co. 239 Mass. 232) as to the mortgage of personal property by which the note was secured and as to his taking possession of the mortgaged property and selling it is left out of consideration, the evidence in this case warranted a verdict for the plaintiff. The question here is as to the effect of this testimony of the plaintiff.
This testimony does hot compel or even warrant the conclusión that in taking possession of the mortgaged property and selling it the plaintiff so acted that, as matter of law, he
The defence that the plaintiff’s dealings with the mortgaged property prevent recovery in this suit is, in substance, a defence of payment and the burden of proving payment is on the defendant. Wadsworth v. Glynn, 131 Mass. 220. In cases in which it appeared that the mortgage „ contained a power of sale it has been held that the burden of showing that the sale was not made in good faith or not properly conducted was on the mortgagor. Wadsworth v. Glynn, supra. Vahey v. Bigelow, 208 Mass. 89, 93. Taylor v. Weingartner, 223 Mass. 243,248. Proof that the mortgage contained no power of sale or proof of the terms of the power of sale, if it contained
There was no error in the denial of the defendant’s requests for rulings. The evidence did not warrant findings of fact which would have made either the first or the second request applicable. Neelon v. Hirsh & Renner, Inc. 255 Mass. 285, 290. It could not have been found either that the plaintiff “did not foreclose the mortgage by sale in accordance with its terms” or that he “attempted to foreclose the mortgage by possession and notice under the statute.” For reasons already given the third request that “the burden is on the plaintiff to show that the mortgage was legally foreclosed” was not a correct statement of law. Boston Safe Deposit & Trust Co. v. Manning, supra.
Judgment on the verdict.