296 Mass. 154 | Mass. | 1936
This action of contract on a promissory note was commenced by writ issuing out of a district court, dated December 28, 1934, and returnable on January 5, 1935. It was removed to the Superior Court on claim for jury trial and affidavit. G. L. (Ter. Ed.) c. 231, § 104. Thayer v. Shorey, 287 Mass. 76, 80. Universal Supply Co. v. Hildreth, 287 Mass. 538, 541. Answer was filed containing a general denial, denial of signature and demand of proof of its genuineness, and allegations of payment and want of consideration. The plaintiff filed a motion for immediate judgment and an affidavit of no defence. G. L. (Ter. Ed.) c. 231, § 59B. Norwood Morris Plan Co. v. McCarthy, 295 Mass. 597. Just prior to a hearing on a pre-trial list, the defendant asked to be allowed to file a substitute answer. That answer set forth in substance a general denial and averments that “he executed and delivered the note sued upon together with Argentine Treasury Notes in the face amount of ninety-six hundred ($9600.) dollars as collateral security for the payment of said note; that at the time of said execution and delivery both of the promissory note and said Argentine notes, a distinct and independent collateral agreement was entered into that the
Whether the motion to file a substitute answer ought to have been granted rested entirely in the sound judicial discretion of the pre-trial judge. Lang v. Bunker, 6 Allen, 61. Fay v. Hunt, 190 Mass. 378, 381. Aronson v. Nurenberg, 218 Mass. 376, 377. Waltham Bleachery & Dye Works v. Clark-Rice Corp. 274 Mass. 488, 491, and cases cited. No error is disclosed.
Whether the facts set out in the substitute answer could rightly have been introduced in evidence to defeat recovery on the note because in violation of the paroi evidence rule need not be decided. Wooley v. Cobb, 165 Mass. 503. Hall v. First National Bank of Chelsea, 173 Mass. 16. Torpey v. Tebo, 184 Mass. 307. Dodge v. Bowen, 264 Mass. 208. Starks v. O’Hara, 266 Mass. 310. National Bank of Charlottesville v. Cambridge Salvage Supply Co. Inc. 270 Mass. 280. Wigmore on Evidence (2d ed.) § 2444. See McCarthy v. Fitzgerald, post, 181.
Exceptions overruled.