131 Mass. 129 | Mass. | 1881
The defendant, by accepting the deeds from the plaintiff subject to two mortgages to the bank, for the amount of which the grantor was personally liable, and “ which the grantee hereby agrees to assume and pay,” has promised the grantor to pay those mortgages and not merely to indemnify the grantor against them; if the defendant does not pay the amount of those mortgages as they become due and payable, he is liable to the grantor in an action of contract in the nature of assumpsit upon his promise; and the measure of the plaintiff’s damages in such an action is the amount of the plaintiff’s debts which the defendant has not paid according to his agreement. Furnas v. Durgin, 119 Mass. 500. Locke v. Homer, ante, 93. The fact that the defendant has since sold the lands to a third person affords no reason for denying or limiting his liability upon his agreement with the plaintiff.
The assignments in pais and in bankruptcy of the plaintiff’s cause of action do not affect the right to maintain this suit in his name with the consent of both assignees. Mayhew v. Pentecost, 129 Mass. 332.
The question of the effect upon this suit of a discharge in bankruptcy of the plaintiff from his liability upon the mortgage notes is not before us. He has as yet obtained no such discharge. Whether this case should be continued, to await the determination of the question of his discharge in the bankruptcy court, was wholly within the discretion of the court below. The bankrupt act does not require the State courts to stay any action, except against the bankrupt, and upon the application of the bankrupt or of his assignee in bankruptcy. Even an action against him may proceed to judgment, if neither he nor his assignee interposes any objection, or if the bankruptcy court gives leave to prosecute it for the purpose of ascertaining the amount due. U. S. Rev. Sts. § 5106. Holland v. Martin, 123 Mass. 278, and cases cited. Towne v. Rice, 122 Mass. 67, 70.
The result is, that the defendant shows no defence at law to this action, and his exception to the ruling of the Superior Court that the plaintiff was entitled to recover must be overruled, and the plaintiff’s exception to the ruling that he was entitled to nominal damages only must be sustained. As the dates and amounts of the mortgagee’s receipts of rents and profits of the
New trial.
