| Mass. | Nov 28, 1916
The note in suit, dated May 1,1909, and signed by the defendant, was indorsed to the plaintiff in April, 1913. It was secured by a mortgage of real estate. This action was brought to recover the balance of the note after crediting the net proceeds of the foreclosure sale of June 30, 1913. The defences relied on were payment and an alleged oral agreement by the plaintiff to accept a deed of the property in payment of the note.
1. There was no evidence to warrant a finding of payment of any sum other than the $650 credited on the note. The $112 received at some time from an insurance company was applied in repairing the property. Assuming that the validity of the foreclosure proceedings is open to the defendant, it appears that they were in accordance with the statutory requirements. There was no direct evidence that the amount paid for the property was inadequate and the mortgage given to the plaintiff by the purchaser at the foreclosure sale included the cost of contemplated improvements in addition to the purchase price. There was evidence that Tower (who apparently bought in the property for the plaintiff) subsequently sold it for a substantially larger sum; but that was after the property had been improved by the expenditure of more money.
2. The contention that the plaintiff agreed to accept the property in payment of the note is not supported by the testimony of the defendant, and is expressly negatived by that of the plaintiff. Indeed the only consideration for the promise to cancel the note set up in the answer, is that “he would allow the plaintiff to fore
3. The foregoing disposes of the exceptions to the judge’s charge, and of all the defendant’s requests that were supported by evidence, and are now relied upon.
Exceptions overruled.