Home WILLIAM F. MARCELLINO, JR. vs. CARMA, INC.

3 Mass. App. Ct. 722

March 13, 1975

The defendant Carma, Inc., appeals from a decree of the Superior Court ordering it to pay the plaintiff $5,000, plus interest and costs. The case arises out of a May 30, 1972, transaction in which the plaintiff agreed to sell his entire interest in the defendant corporation (being 47 1/2 percent of its stock) to the defendant for the sum of $20,000) and one Carrigan (the owner of another 47 1/2 percent of the defendant's stock) agreed to lend the defendant sufficient funds ($20,000) to enable it to make the purchase. We affirm the decree, as the evidence warranted the judge's finding and ruling that only $15,000 was paid on the defendant's obligation to the plaintiff. Although the last check, which was drawn to the plaintiff's order by Carrigan, bore the notation "Re: Agreement -- May 30, 1972 WFM, Jr., T.P.C., Carma, Inc. Final Payment. . ." and the plaintiff initialed the notation and endorsed the check, this would not be sufficient to discharge the defendant from further liability on its obligation since neither the defendant nor Carrigan gave consideration for any such discharge. Brooks v. White, 2 Met. 283 , 285 (1841). Emerson v. Deming, 304 Mass. 478 , 481 (1939). See Longo Elec. Co. Inc. v. Dumais, 1 Mass. App. Ct. 830 (1973), and cases cited. Compare Sloan v. Burrows, 357 Mass. 412 , 415 (1970). The case of Chamberlain v. Barrows, 282 Mass. 295 (1933), relied on by the defendant, is inapposite. Carrigan was not a third party within the meaning of that case.

Decree affirmed.

Home THE FIRST NATIONAL BANK OF BOSTON & others, trustees, vs. JOHN J. GRAHAM, guardian ad litem.

3 Mass. App. Ct. 722

March 13, 1975

A guardian ad litem brings this appeal from a decree of a Probate Court allowing certain accounts by trustees under a will and contends that The First National Bank of Boston (bank), which, with individual trustees, filed the last of the accounts and presented all the accounts for allowance, did not continue or succeed to the position of trustee, formerly held by Old Colony Trust Company, which, with at least one of the individual trustees, prepared all of the accounts and signed them, and which, according to the judge's report of material facts, merged with the bank on December 31, 1970. Because the accounts in question cover (in the aggregate) a period from October 21, 1965, through October 20, 1969, the only issue conceivably before us is whether the act of the bank in joining with the individual trustees (whose standing is not questioned) in presenting the accounts for allowance after December 31, 1970, made it error for the judge to allow them. Assuming that the bank was not

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an interested person within the meaning of G. L. c. 206, Section 23A (see, however, New England Merchants Natl. Bank v. Centenary Methodist Church, 342 Mass. 360 [1961]), no reason has been suggested (much less supported by citations of authority) why its lack of standing would vitiate the standing of the individual trustees. Compare G. L. c. 206, Section 20. We regard the appeal as frivolous.

Decree affirmed.