232 Mass. 393 | Mass. | 1919
This is a bill in equity to recover on a promissory note signed by the defendant Copelof (hereinafter called the defendant), and to reach his interest in certain shares of stock in the M. & C. Skirt Company, the defendant corporation. Issues were framed for the jury. At the hearing the plaintiff offered in evidence the note signed by the defendant, for $3,754.96, dated September 25,1917, payable to the plaintiff on December 31,1917, and rested. The defendant testified and called the plaintiff as a witness. To the first issue "Was the note in suit delivered upon a conditional delivery ? ” the jury by direction of the judge found in the negative. By this answer it became unnecessary to consider the other issues. The case is in this court on the defendant’s exception to the ruling of the judge directing the jury to answer “No” to the first issue.
It was not disputed that the note in suit was delivered to the plaintiff by the defendant. The plaintiff was employed by the defendant corporation and was the holder of $9,000 par value of its capital stock. He testified that he asked the defendant to buy this stock for the defendant company; that the defendant refused to do this and said, "I will buy the stock from you and will give you $5,000 for it.” On August 22, 1916, the defendant wrote the plaintiff saying: “I will upon your assigning to me all your shares of M. & C. stock, hand you my obligation for five thousand dollars ($5,000) less amount you now owe the M. & C. Skirt Co. and the amount I am to give you dining September as agreed.” The promissory note signed by the defendant was enclosed in a letter to the plaintiff dated September 25, and on September 30, 1916, the plaintiff in writing acknowledged its receipt. On December 29, 1917, the plaintiff wrote the defendant stating he was willing to accept $500 in cash and a new note on demand for the balance, “but this note must be
The defendant contends that he was to take the stock, and if his personal note remained unpaid at maturity the company was either to pay the note or to give its own obligation for it. It was permissible for him to show that no contract was made with the plaintiff, that the promissory note was not delivered as a binding agreement, and that its delivery was only conditional. Watkins v. Bowers, 119 Mass. 383. Hill v. Hall, 191 Mass. 253, 265. But there was no evidence to support the contention that the delivery of the note was conditional. What the defendant attempted to show was a collateral oral agreement between himself, as the maker of the note, and the plaintiff, the payee, to the effect that if the defendant did not pay the note when it was due he was not to be held if the M. & C. Skirt Company gave its obligation for the note. This could not be done. The agreement was in writing and could not be modified or changed by a paroi, cotemporaneous agreement. Equitable Marine Ins. Co. v. Adams, 173 Mass. 436. Bryne v. Bryne, 209 Mass. 179. Aronson v. Nurenberg, 218 Mass. 376.
There was no error of law in directing the jury to answer “No” to the issue “Was the note in suit delivered upon a conditional delivery?” The execution and delivery of the note in payment for the plaintiff’s shares of stock in the M. & C. Skirt Company was admitted; the evidence did not show that the note was delivered “upon a conditional delivery.” As there was no material question of fact in dispute, there was no question to be submitted to the jury and the direction of the court was right. Campbell v. Whoriskey, 170 Mass. 63. Gaston v. Gordon, 208 Mass. 265. McIntire v. Conlan, 223 Mass. 389.
Exceptions overruled.
