Home UNITED STATES TRUST COMPANY vs. ANGUS M. MACNEIL & others (and a companion case).

332 Mass. 753

December 2, 1954

Exceptions overruled. The judge directed verdicts for the plaintiff in these actions of contract brought by the holder of two promissory notes against the makers and also the indorsers (including the defendant MacNeil individually), who waived demand, notice, and protest. The defendants admitted that the notes were validly executed, that the signatures and indorsements thereon were genuine, and that the makers received the full amount set forth in said notes. The judge excluded evidence that a third party, a depositor, made a claim by letter against the plaintiff for some checks which were supposedly forged. The defendants were not harmed by the exclusion of the evidence as there is nothing to show what were the contents of the letter. Lane v. Epinard, 318 Mass. 664 , 667-668. Even if we assume that the letter was the order and release of funds referred to in the defendants' answers setting up payment, there was no error, for the letter did not constitute payment of the notes. Doody v. Pierce, 9 Allen 141 , 143. Borden v. Sackett, 113 Mass. 214 , 217. Austin v. Papanti, 197 Mass. 584 , 586. Westminster National Bank v. Graustein, 270 Mass. 565 , 586.


332 Mass. 753

December 8, 1954

Final decree dismissing the bill affirmed with costs of appeal. The bill was brought to restrain the defendants Clarence R. Amidon and Rosalie Amidon, who is apparently the wife of Clarence, from interfering with the occupancy by the plaintiff of a certain tenement in a dwelling house in Petersham. Clarence is hereinafter referred to as the defendant. The bill is based upon an alleged oral agreement made in 1912 with Josiah Amidon, the father of the plaintiff and the grandfather of the defendant, whereby Josiah promised his daughter Susan, the plaintiff, that she could occupy the tenement for her life upon her promise to tend and care for Josiah for the balance of his life. Susan alleged that she carried out her part of the agreement until 1931 when Josiah died and devised certain premises of which the tenement was a part to the defendant. Susan continued to occupy the tenement without interference until just prior to the commencement of this suit when the defendant gave her written notice to vacate. The evidence is not reported but the judge filed what is termed "Findings of Fact and Order for Decree." We treat this as a report of material facts under G. L. (Ter. Ed.) c. 214, Section 23, as appearing in St. 1947, c. 365, Section 2. The judge made specific findings of fact and concluded that "No contract existed between the father and daughter, and no tenancy was created by the permission granted." In these circumstances, it

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has been said the decree dismissing the bill "must be affirmed if the conclusions of fact of the trial judge are consistent with the specific facts found by him, and these conclusions, in connection with the specific facts found, support the decree." Tompkins v. Sullivan, 309 Mass. 496 , 497. Here the conclusions of fact of the trial judge are consistent with specific facts found by him and support the decree.