First Nat. Bank Boston v. Mathey

RONAN, Justice. The plaintiff in this action of contract sought to recover on the first count of its declaration a balance amounting to $57,744.72, alleged to be due upon a promissory note made by the defendant under the date of September 15, 1932, and payable to the plaintiff; and in the second count to recover the aforesaid balance upon an account annexed. The case was referred to an auditor, and thereafter was tried upon the report and other evidence before a jury which returned a verdict for the plaintiff upon the first count and for the defendant upon the second count. The defendant excepted to the denial of certain requests for instructions and to portions of the charge. The defendant filed an answer which contained a general denial, a claim of payment, and a recital that the note was given without consideration 'or in any event that the consideration therefor has failed.' The answer also set up as additional matters of defence that the note was given in lieu of a prior note upon the express agreement that the plaintiff would keep itself informed of the fluctuations of the value of the collateral pledged with the note, and would be prepared to sell this collateral at such times and upon such conditions as would pay the note; that it would sell the collateral upon the request of the defendant; that 'in violation of the express condition of the delivery of said note as aforesaid the plaintiff on or about June 11, 1930 and at divers times thereafter' refused to sell the collateral at the request of the defendant; and that the defendant has thereby been damaged. The plaintiff demurred to this portion of the answer setting up these additional matters of defense. The defendant appealed from an order sustaining the demurrer.