The judge properly excluded evidence of a purported set-off which the defendants sought to introduce at the trial held in January, 1974. The assignor's obligation for goods sold and delivered ran only to one of the defendants, New England Air Conditioning Distributors, and could not be asserted as a set-off in an action against the four defendants as comakers of the promissory note in question. G. L. c. 232, Section 3, as in effect prior to St. 1975, c. 377, Section 111. Evidence that the transaction by which the plaintiff acquired his interest in the note was a fraudulent conveyance was also properly excluded. As the answer in set-off was filed after the adjudication in bankruptcy of the plaintiff's assignor, the conveyance could only be voided by the trustee in bankruptcy, not by a creditor. Thomas E. Hogan, Inc. v. Berman, 310 Mass. 259 , 261 (1941). The defendants' further contention that the trial judge improperly instructed the jury on the effect of the findings of a Municipal Court (G. L. c. 231, Section 102C) was waived at oral argument.
Judgments to be entered on the verdicts.
The complaint was properly dismissed under Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974). No claim is stated for deceit (see Graphic Arts Finishers, Inc. v. Boston Redevelopment Authy. 357 Mass. 40 , 44 ) or negligent misrepresentation (see Craig v. Everett M. Brooks Co. 351 Mass. 497 , 499-501 ) because the plaintiff made the loan prior to the alleged misrepresentation and could not have relied on the representation.
Nor is there stated a claim against the defendant individually on the alleged corporate assumption of Patterson's debt. The facts alleged do not bring the case within the exception to the third-party beneficiary rule for money held for creditors (Exchange Bank v. Rice, 107 Mass. 37 , 42 ) or indicate grounds for liability under G. L. c. 156B, Sections 61, 63.