
    SUPERIOR COURT
    Michael J. Murtagh, Ex’r vs. William C. Egan
    No.61599
    RESCRIPT
    April 25, 1925
    For Plaintiff: Cooney & Cooney.
    For Defendant: Walter J. Hen-nessey.
   BLODGETT, J.

Heard, jury trial waived.

September 26, 1921, Egan executed a note for $500 to William Garrahan accompanied by an agreement that the note should be payable in three years. Garrahan died and plaintiff is executor of his will.

October 3, 1923, Thomas F. Cooney, attorney, wrote to Egan that the sum of $250 was due on account of a loan by Garrahan to Egan and requested payment.

September 15, 1924, Thomas P. Cooney again wrote to Egan that a note for $500 was due.

Egan testified t'o four payments as follows: January 15, 1922, $100; March 26, 1922; $65; September 26, 1922, $60; March 26,. 1923, $55. Egan claimed $250 was paid on the principal and the remainder for interest. As-to the first payment Egan’s wife corroborated him. As to the other payments they rest on Egan’s word alone. No receipts were given and no credits made on the note.

Mr. Cooney, in reply to a question by the court, said he could not remember where he got the information that the amount due on the loan, was $250, but was under the impression that a Mrs. Fox so informed him. Mrs. Fox, the court understands, was a daughter of deceased, and beneficiary under his will.

A witness for the defense testified it was not the custom of deceased to give receipts for money paid him for rent and that witness had paid deceased money and when she asked for a receipt, he would say, “You’ve paid it once and you won’t have to pay it again.” Mrs. Fox did not testify, and in view of her failure to deny that she had ever intimated to Mr. Cooney that the amount due was $250, the court is inclined to believe that Mr. Cooney did get' this information from her when he wrote the letter of October 3, 1923.

Decision for plaintiff for $250 and interest, amounting to $48.50, in all $298.50 and costs.  