180 Mass. 191 | Mass. | 1902
By the terms of the report on which this case comes here, it is provided that if the plaintiff had the right to go to the jury on the evidence, judgment is to be entered for the plaintiff in the sum of one dollar.
It appeared that on January 23, 1896, the plaintiff borrowed of the defendant $125 through the defendant’s agent, A. L. Watson, with whom alone the plaintiff had all his dealings. To secure the repayment of the loan he made his note for the amount, payable in six months, and executed a mortgage on a piano to secure the payment of the note. He testified that when the loan was made, he was told by Watson that if he “ did not have it paid up when the time of the mortgage was out,” he “ would have to make out a new mortgage to have it extended.” On the maturity of the first note, namely, on August 23, 1896, he gave a new note for $125 due in six months, paying $30 interest, and gave a new mortgage on the piano to secure the payment of the note. On the maturity of this second note, namely, on January 23, 1897, he paid $25 principal and $45 interest, and gave a new note for $100, payable in six months, and a new mortgage on the piano. On the maturity of the third note, he gave a new note and a new mortgage for $100,
None of these mortgages was discharged; none of the notes was surrendered, but they were all retained by the defendant. Apparently no one of these mortgages or mortgage notes was made to the defendant, but they were made, one to the defendant’s agent, A. L. Watson ; one to his uncle, James A. Watson; one to the defendant’s bookkeeper, Florence W. Lewis (who was also the defendant’s sister) ; another to one Lafield, who was Mrs. Lewis’s brother-in-law; and the fifth to one Stewart, who was a clerk of Lafield. All these mortgages were assigned to the defendant, and each assignment was made and delivered to the defendant at the time that the mortgage in question was made. And, lastly, it appeared that all the money that was paid was paid to the defendant Roberts, and that neither A. L. Watson, James A. Watson, Florence W.- Lewis, Mr. Lafield, nor his clerk Stewart had any interest in the transactions.
It is enough to dispose of this case, that the defendant could have gone to the jury on the evidence introduced by the plaintiff on which the defendant rested his case, had he sought to enforce the first of these five mortgages.
On the evidence, the jury could have found that all the mortgages stood on the same footing as they would have stood on, had they been made directly to the defendant; and inasmuch as the defendant retained all the mortgage notes and the mortgages and no one of them was discharged, and inasmuch as the plaintiff testified that they were all given in pursuance of the statement made by the defendant’s agent during the negotiations for the original loan that “if I did not have it paid up when the time of the mortgage was out, I would have to make out a new mortgage to have it extended,” the defendant could have gone to the jury on the question whether the subsequent notes and mortgages were in renewal of the original or in payment of it. Taft v. Boyd, 13 Allen, 84. Dodge v. Emerson, 131 Mass. 467.
If the subsequent notes were but renewals of the original, there was but one debt, and on payment of that debt all the notes
Judgment for the plaintiff in the sum of $1.
