283 Mass. 86 | Mass. | 1933
The plaintiff declared in two counts: one upon a promissory note signed by the defendants, the second for a balance of money laid out at the defendants’ request. The note was secured by a second mortgage of real estate. The defendants gave evidence that after breach of the conditions of the mortgage, the male defendant saw the plaintiff, stated their inability to meet the require
This was all the evidence material to the exceptions. The signatures and consideration of the note were admitted. Exception is claimed to an order directing verdict for the plaintiff.
No error appears. Liability upon the note was undisputed, unless the unfulfilled arrangement with reference to foreclosure was a defence. Had the plaintiff foreclosed without opposition from the defendants or had he accepted a deed from them, there would have been an accord and a satisfaction of the accord which would have extinguished the note. Nothing of the kind came about. An unsatisfied accord is not a defence. Gilson v. Nesson, 198 Mass. 598. White v. Beverly Building Association, 221 Mass. 15, 18. Until satisfaction of the accord or, possibly, suit to compel performance, the plaintiff was at liberty to take any remedy to secure payment which the law gave him. Suit by trustee process was such a remedy. He took it. If the judgment is paid, the note will be extinguished. In the eye of the law the defendants will not be harmed. They will have their land free of the mortgage, and they will be free of this debt. No question is raised or argued with regard to the second count.
Exceptions overruled.