No. 94-0506Commonwealth of Massachusetts Superior Court CIVIL ACTION SUFFOLK, ss.
December 11, 1995
MEMORANDUM AND ORDER ON PLAINTIFF’S THIRD MOTION FOR SUMMARY JUDGMENT
FREMONT-SMITH, JUSTICE.
This action is brought by the plaintiff Bank to recover $443,000 from defendant Roffman. It is undisputed that, on or before March 20, 1993, Roffman was loaned $443,000 by the Bank, evidenced by a demand note which he admits to have signed, and which he admits has not been paid. Defendant contends, however, that this note is a nullity, as it was superseded by a second demand note for $440,000, which he signed on October 1, 1993, on which he admits that the amount now due, with interest, totals $438,500.
Defendant argues that the first note became a nullity when the Bank altered it by adding an additional party (Ropt, G.P., Inc.) so that, when defendant signed the second note, as a novation of the first note, he did so without consideration, so that the second note is also a nullity. In spite of this “catch-22” argument, however, defendant admits that he was loaned the money, and that $438,500 of this money remains unpaid. In these circumstances, it is academic whether he owes the money under the first note, under the second note, under both notes, or under neither note, but simply as “money had and received”.
Defendant additionally argues that the parties agreed that repayment would be made by way of the Bank’s debiting defendant’s bank account at the Bank, so that when the Bank unilaterally closed his bank account, it made the contract impossible of performance, so that he is entitled to pocket the $438,500 and never repay it. There is no contention, however, that the Bank seized any money of defendant which was in the account, so that there is no factual basis for any contention that the closing of defendant’s bank account rendered him unable to repay. Not surprisingly, there is no document indicating that the Bank agreed to the bizarre proposition that defendant might simply keep the $438,000 unless it was repaid out of that particular bank account of the defendant. Nor could such an agreement, which would have been totally irrational, reasonably be inferred from any course of dealing between the parties.[1] As the undisputed facts indicate that there is $438,500 presently due and owing by defendant to the Bank, which defendant refuses to pay, the Court will allow plaintiff’s Motion for Summary Judgment in that amount.
With respect to defendant’s amended counterclaims to the effect that the Bank wrongfully closed defendant’s account and dishonored his checks, plaintiff’s Motion to Dismiss these allegations can be better considered in conjunction with the similar allegations contained in the separate pending action filed by defendant against the Bank, Stuart A. Roffman v. US TRUST, et al., Suffolk Superior Court Civil Action No. 95-0068. Accordingly, defendant’s counterclaims are hereby consolidated with that action (No. 95-0068) for further pre-trial proceedings and trial.
ORDER
Judgment shall enter for the plaintiff in the sum of $438,500, plus interest and costs. Upon payment of that amount to the plaintiff, plaintiff shall promptly deliver to defendant the canceled notes.
Defendant’s counterclaims are consolidated with civil action number 95-0068, and plaintiff’s motion for summary judgment with respect to said counterclaims is deferred and should be renewed for consideration in conjunction with proceedings in that action.
Thayer Fremont-Smith Justice of the Superior Court
DATED: December 11, 1995