Marcellino v. Carma, Inc. , 3 Mass. App. Ct. 722 ( 1975 )

The defendant Carma, Inc., appeals from a decree of the Superior Court ordering it to pay the plaintiff $5,000, plus interest and costs. The case arises out of a May 30, 1972, transaction in which the plaintiff agreed to sell his entire interest in the defendant corporation (being 47% percent of its stock) to the defendant for the sum of $20,000 and one Carrigan (the owner of another 47% percent of the defendant’s stock) agreed to lend the defendant sufficient funds ($20,000) to enable it to make the purchase. We affirm the decree, as the evidence warranted the judge’s finding and ruling that only $15,000 was paid on the defendant’s obligation to the plaintiff. Although the last check, which was drawn to the plaintiff’s order by Carrigan, bore the notation “Re: Agreement — May 30, 1972 WFM, Jr., T.P.C., Carma, Inc. Final Payment ...” and the plaintiff initialed the notation and endorsed the check, this would not be sufficient to discharge the defendant from further liability on its obligation since neither the defendant nor Carrigan gave consideration for any such discharge. Brooks v. White, 2 Met. 283, 285 (1841). Emerson v. Deming, 304 Mass. 478, 481 (1939). See Longo Elec. Co. Inc. v. Dumais, 1 Mass. App. Ct. 830 (1973), and cases cited. Compare Sloan v. Burrows, 357 Mass. 412, 415 (1970). The case of Chamberlain v. Barrows, 282 Mass. 295 (1933), relied on by the defendant, is inapposite. Carrigan was not a third party within the meaning of that case.

Decree affirmed.