286 Mass. 526 | Mass. | 1934
These two actions were tried together to a jury in the Superior Court. The first action, in two counts, is on a promissory note of $75,000 to recover a balance of $23,862.33. The second is in contract or tort, and is brought by the defendant in the first action against the plaintiff in that action and one Harris Poorvu. The second action was brought by trustee writ. One alleged trustee answered funds and two answered no funds. In the first action the defendant’s answer was a general denial, payment, various breaches of contract, and tortious actions of Sumner L. Poorvu and Harris Poorvu, which were set up as matters in recoupment.
The declaration in the second action is in seven counts, classified by Weisberg in his brief as follows: Count 1 is for breach of contract by the defendants Poorvu to advance money to the plaintiff at certain stages in the construction of a building. Count 2 reads: “And the plaintiff says that the defendants entered into an illegal and unlawful conspiracy to cheat and defraud the plaintiff of his money and realty and services by procuring the plaintiff to furnish land, labor, materials and money, and other - persons to furnish labor and materials for the construction of certain buildings in the city of Marlborough, and securing the plaintiff to execute a note and mortgage upon the said land in the city of Marlborough without any intention of paying for the same; that in furtherance of this conspiracy the defendants caused to be drawn a certain construction loan agreement and induced the plaintiff to execute the said agreement by representations that advances would be made to the plaintiff on Fridays in accordance with the custom of construction mortgagees in order that material men and laborers might be paid on Saturdays, and that the defendants would make all possible efforts to secure tenants for the stores and other buildings on the land, and to secure customers to purchase the stores and other buildings, and would perform speedily everything agreed by the defendants to be performed; that the defendants never intended
Although it is not stated in the declaration that the several counts are for the same cause of action (and obviously they are not), they, nevertheless, in substance are for identical matters set out in the answer to the first action. This becomes obvious when the paragraphs of the answer are set against the counts in the cross action in parallel columns. Two paragraphs of the answer, in substance, respectively set up that the amount declared on was never advanced and that “the construction loan agreement under which advances were made, and the note and mortgage given, were extortionate and inequitable and unfair and the defendant has been overcharged at least the amount declared on.”
From the opening statement on behalf of Herman Weisberg, which must be taken to be true for the purpose of these exceptions, Gray v. Boston, 277 Mass. 166, Massachusetts Hospital Life Ins. Co. v. Nesson, ante, 216, and upon the evidence introduced, the following facts were not in issue: Weisberg on May 25, 1927, signed the six months’ note and the construction loan agreement in suit calling for one and one quarter per cent interest per month after maturity. There was advanced on the note the sum of $63,100, of which $40,000 was advanced at the time of signing the note and the balance at the time and in the amounts shown by the receipts of Weisberg. In addition, as shown by an agreement attached to Weisberg’s declaration, the
Summarily stated, the action of Poorvu against Weisberg was for a balance of $18,400, with respect to which the receipt of the money was admitted and the existence of the liability not in dispute, unless the matter set up by way of answer and cross action was a defence.
After the trial had proceeded for about eight days, while a witness for Weisberg was on the stand and evidence had been introduced tending to establish the alleged false statements, interference and breach of the construction contract, Poorvu filed a motion that Weisberg “be compelled to elect between reliance upon his answer in the first case and his writ and declaration in the second case.”- On this motion the judge ruled that Weisberg “must now elect whether he will rely upon the allegations in recoupment in the answer in the suit in which he is the defendant, or upon the same matters alleged in the declaration in the suit in which he is plaintiff.” Weisberg excepted to the ruling and elected as follows: “Upon the matters referred to in the court’s ruling, compelling election, Herman Weisberg elects now, subject to his objection and exception duly noted and saved, to go forward in the cross action, No. 259,503.”
It was formerly the practice in an action at law, where the defendant pleaded damages in recoupment and also sought the same damages on the same state of facts, to permit the jury to consider them in answer to the first suit and award any excess found over the plaintiff’s claim to the defendant in his cross action. Cook v. Castner, 9 Cush. 266. Star Glass Co. v. Morey, 108 Mass. 570, 573. This practice was followed, by a trial judge sitting without a jury, in Learned v. Hamburger, 245 Mass. 461, 473, and in Zarthar v. Saliba, 282
The defendants Poorvu moved that the action of Herman Weisberg against Sumner Poorvu and Harris Poorvu be dismissed for want of jurisdiction. The motion was allowed. Sumner Poorvu then moved for a directed verdict for the plaintiff in the case of Sumner L. Poorvu against Herman Weisberg. This motion was allowed.
G. L. (Ter. Ed.) c. 246, § 1, reads: “All personal actions, except tort for malicious prosecution, for slander or libel or for assault and battery, and except replevin, may be commenced by trustee process.” This court construing the provisions of Pub. Sts. c. 183, § 1, which is similar in its provisions to G. L. (Ter. Ed.) c. 246, § 1, held in McDonald v. Green, 176 Mass. 113, that the provisions of Pub. Sts. c. 183, § 1, were applicable and should be applied to actions of tort in which the wrong complained of is the writing or speaking of words designed to injure the plaintiff in his property, as well as those defamatory of his person or reputation; and that an action of tort for slander, regardless of the pleadings, cannot be commenced by trustee process and if begun should be dismissed. It was held in MacCormac v. Hannan, 248 Mass. 86, citing Guarino v. Russo, 215 Mass. 83, and Hall v. Hall, 200 Mass. 194, that the express prohibition of the statute (quoted) goes to the validity of the action, and to the jurisdiction of the court, and that this invalidity cannot be cured by amendment.
A reading of counts 2 and 4 of the declaration in the cross action shows, among other possible tort wrongs to the plaintiff, charges that the defendants Poorvu circulated false statements “about the plaintiff’s financial condition”
In the case of Poorvu against Weisberg the motion of the defendant to amend his answer called for action which was within the discretion of the judge. In refusing to allow the amendments the trial judge stated: “Upon the consideration of the motion to amend the answer I rule that the matters and things therein alleged whether or not proper subjects of recoupment, do not constitute a defence to the note and in my discretion as affected by said ruling I deny the motion.” The defendant contends that the trial judge was in error because the note, mortgage and agreement v?ere to be considered together, and that the answer should have been allowed to be filed to permit the defendant thereunder “to show violations by the plaintiff of express and implied conditions of the contract and damage caused the defendant thereby”; also, that the amendment to the answer should have been allowed to permit the defendant thereunder to show a failure of consideration and a refusal of the plaintiff to perform his obligations under the contract, citing Sipley v. Stickney, 190 Mass. 43.
We think it clearly appears from the construction loan agreement that the consideration for the note is not the agreement but the money advanced under the agreement; that the agreement is collateral to the note arid not the
Ruling numbered 1, requested by the defendant Weisberg, suggests nothing that is material to the issue. Ruling numbered 2 describes accurately the procedure which was followed. Requested rulings numbered 3, 4, and 13 are limited by the rule of substantive law that parties may contract for any rate of interest they choose and it is immaterial that the agreement is unconscionable. Lamprey v. Mason, 148 Mass. 231. G. L. c. 107, § 3. If the agreement is in writing, as here, interest at a rate greater than six per cent may be recovered. In respect to the compensation of $5,500 for the loan, this is governed by Mainland v. Upjohn, 41 Ch. D. 126, cited in Barry v. General Mortgage & Loan Corp. 254 Mass. 282, 288, wherein it is stated that Mainland v. Upjohn decided that “the advances having been made upon a security of a speculative character, the court in taking the account would allow the mortgagee the sums actually deducted by him for commissions or bonuses, at the times of making the advances, provided the deductions were made as part of the mortgage contract, under a bargain deliberately entered into by the parties while on equal terms.” Weisberg knew what he was doing when he signed the application for the loan, printed in the record; he was on equal terms with Harris Poorvu, and there is no testimony to show an improper promise or unfair dealing on Poorvu’s
, In each action the entry must be
Exceptions overruled.