Paul Revere Trust Co. v. Castle

231 Mass. 129 | Mass. | 1918

Braley, J.

It was agreed by the parties in the trial court before which the case was heard without a jury that “all the allegations contained in the defendant’s amended answer are to be taken as true and to be so considered by the court, and in this agreement the court acquiesced.” By those allegations it appears that the plaintiff, as the holder in due course of a promissory note for $6,000 dated June 12, 1913, payable, four months from date and signed by the defendant as maker, and indorsed by “John W. Lavery & Son,” caused the note to be protested at maturity for non-payment. The note remaining unpaid, the plaintiff on January 8, 1914, brought suit against the defendant and on February 18, 1914, began another action against John W. Lavery and Francis W. Lavery as indorsers to recover the face of the note with interest at the rate of six per cent per annum from October 12, 1913. While the actions were pending the plaintiff agreed in writing that, upon payment by the indorsers on or before a certain date of the face of the' note, it would accept the amount in full satisfaction of all demands, and that an entry should be made in the second case of judgment satisfied. A verdict by order of the court and agreement of parties was subsequently returned for $6,510.04, and the case was continued for judgment to June 7, 1915, the date named in the agreement. The indorsers on that day paid to the plaintiff the amount agreed upon which “was taken, accepted and received by the plaintiff under and by virtue of said agreement.” But the plaintiff “refused to cause an entry of judgment satisfied to be made,” and prosecuted its action, which is the ease at bar, under a “substitute declaration” whereby it sought to recover the unpaid interest from the date of maturity of the note to the date of trial.

It is plain upon these material facts that the presiding judge, instead of finding and ordering judgment for the plaintiff for the amount demanded, should have ruled as requested by the defendant, that the action could not be maintained.

The maker and indorsers by the tenor of the note having been under no contractual obligation therefor, interest was not recoverable except as damages for non-payment of the principal, and, when the plaintiff accepted the principal in full payment, the right to recover the interest either against the indorsers or the maker was extinguished. Dodge v. Perkins, 9 Pick. 368, 388. Whitcomb v. Whitcomb, 217 Mass. 558, 565. Davis v. Harrington, 160 Mass. 278.

It follows that the exceptions must be sustained and judgment should be entered for the defendant.

So ordered.