8 Mass. App. Ct. 943 | Mass. App. Ct. | 1979
1. It is clear from the unmodified language (particularly the opening clause of the second paragraph) of the writing admittedly executed by the defendants on July 21, 1977, that that writing constituted an absolute guaranty of specifically described obligations of Thames, Ltd. (Thames), as opposed to an offer to guarantee those obligations. It follows that the plaintiff was not required to notify the defendants of its acceptance of the guaranty or to demonstrate that it relied thereon in subsequently extending credit to Thames. Paige v. Parker, 8 Gray 211, 214 (1857). Lennox v. Murphy, 171 Mass. 370, 373 (1898). Cumberland Glass Mfg. Co. v.
3. There was no ambiguity created by the language employed by the defendants in modifying the plaintiff’s standard form of guaranty which entitled the defendants to introduce parol evidence as to the intended meaning of that language. See and compare Merrimack Valley Natl. Bank v. Baird, 372 Mass. 721, 722, 723, 724-725, 726 (1977).
4. The plaintiff was obliged to follow the agreed upon practice asserted (without challenge; see Mass.R.Civ.P. 56[f], 365 Mass. 825 [1974]) in the Maciel affidavit of applying the payments received from Thames against its obligations in the order in which those obligations had been incurred. Crompton v. Pratt, 105 Mass. 255, 257 (1870). Worthley v. Emerson, 116 Mass. 374, 374-375 (1874). Snell v. Rousseau, 257 Mass. 559, 561-562 (1926). Lampasona v. Capriotti, 296 Mass. 34, 40 (1936). Accordingly, the damages component of the judgment entered on the original complaint must be modified so as to state the defendants’ total liability to the plaintiff as $30,256.50 rather than $43,391.50, and the interest component of that judgment must be recalculated on the lower of those figures. 5. The defendants’ appeal from the judgment dismissing their counterclaim has not been argued within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and the brief submitted by the plaintiff ignores the cross appeal claimed by it. Accordingly, both those appeals will be dismissed. Tobin v. Commissioner of Banks, 377 Mass. 909, 910 (1979). 6. No question touching the validity of the postjudgment real estate attachments which were approved on June 30,1978, was raised by the defendants’ claim of appeal which was filed on June 14,1978, and which was directed only to the judgments on the original complaint and on the defendants’ counterclaim which had been entered on
So ordered.
