312 Mass. 685 | Mass. | 1942
This is an action of contract to recover the balance alleged to be due upon an account stated, which arose out of the rendition of legal services by the plaintiffs’ testator, Asa P. French, between October 3, 1922, and November 30, 1926. Mr. French died on September 17, 1935. His executors, who were appointed on October 28, 1935, brought this action on October 23,1937, against Robert Dietz. Dietz has since deceased and the action is now defended by his administratrix. Dietz, a leather manufacturer, conducted business as an individual until January 17, 1924, when a corporation, named the R. Dietz Leather Company, Inc. and later the R. Dietz Leather Co. Inc. took over the business and thereafter conducted it. The corporation was petitioned into bankruptcy in May, 1930. It made a composition offer with its creditors, and was dissolved in 1935 by an act of the Legislature. Dietz was the president, treasurer and a stockholder of this corporation, and was from and after its incorporation the active manager of its business. An itemized bill running to Dietz, amounting to $4,090.95 was sent by Mr. French to Dietz on March 17, 1927. It is this bill upon which the account stated was based. It set forth in detail the services rendered in five suits, the services in the first commencing on October 3, 1922, in the second on January 2, 1924, and in the third on January 7, 1924. The services in reference to the two remaining suits began after Dietz had incorporated his business. Dietz was a party in all these suits and the corporation was also a party in one of them. Mr. French appeared for both Dietz and the corporation. The bill sent on March 17, 1927, included a charge of $250 for “retainer” due December 31,1926, and at the end contained a note that the “Annual retainer of corporation and Dietz covers consultations, correspondence, advice, etc., in matters not in court.” After March 17, 1927, Mr. French wrote several letters addressed to “Mr. Robert Dietz, R. Dietz Leather Company” requesting payment. The trial judge found that the plaintiffs had proved an account stated; that the
The question presented is whether upon the findings of the trial judge the payment on account by a corporation, by its check issued by its treasurer, of an indebtedness which was owed by it and by one who was its treasurer, president and manager before the statute of limitations has run against the debt constitutes, as matter of law, a part payment by the individual debtor and deprives him of the benefit of the statute.
The reason a part payment tolls the statute is that such payment is an acknowledgment of an existing indebtedness and raises an implied promise to pay the balance. Such payment need not be made personally by the debtor. It may be paid by another in his behalf with his knowledge or consent or by his direction. But whatever form the payment may take, the debtor must stand in such a relation to it as to warrant an inference that by the payment he personally intended to renew his promise to satisfy the indebtedness. Buffinton v. Chase, 152 Mass. 534. Day v.
The indebtedness, upon the findings of the trial judge, might conceivably be considered as the joint as well as the several obligation of the individual and the corporation. Part payment by one of two joint debtors tolled the statute of limitations against both debtors at common law, but this rule has been changed by statute, and now one joint debtor does not lose the benefit of the statute by reason of a payment by the other only. G. L. (Ter. Ed.) c. 260, § 15. Peirce v. Tobey, 5 Met. 168. Balcom v. Richards, 6 Cush. 360. Faulkner v. Bailey, 123 Mass. 588. Fletcher v. Sturtevant, 235 Mass. 249. Credit Service Corp. v. Barker, 308 Mass. 476.
Although the payment was that of the corporation, the plaintiffs contend that, as it was made by the direction of Dietz and for his benefit, it stayed the operation of the statute against him personally even though in issuing the check Dietz was acting as a corporate officer. If the corporation was not itself a debtor, then a payment by it to a creditor of Dietz at his request would undoubtedly be a part payment by Dietz and would have the same effect under the statute as if it were made by him personally. McMillan v. Sproat, 51 Idaho, 236. Gordon v. Russell, 98 Kans. 537. Patterson v. Collier, 113 Mich. 12. Kienke v. Hudson, 126 Neb. 551. McNamee v. Graese, 61 S. D. 46. Kegel v. McCormack, 225 Wis. 19. Goerlinger v. Juetten, 237 Wis. 543. But the situation is different where the obligation is that of the corporation and its officer. It is.a question of fact whether the issuance of the check was an acknowledgment of his own personal obligation. The check on its face purported to be a payment by the corporation in its own behalf. The payment might properly be found to be no more than an acknowledgment of indebtedness by the corporation. The letter that accompanied the check was signed in behalf of the leather company by Dietz. Mr. French wrote Dietz that he had received the check, and
Whether the circumstances attending the making of the payment would warrant a finding that Dietz thereby acknowledged his personal indebtedness to the creditor is not presented for our decision. The only issue before us is whether such a finding is required. Whether an implied promise by Dietz to pay arose out of the payment made by the corporation was itself a matter of inference. The evidence, however, did not require such an inference. There was evidence to support the finding that Dietz had no connection with the part payment other than as an officer of the corporation, and the finding, necessarily implied in the general finding for the defendant, that the payment did not constitute an acknowledgment of any personal indebted
The plaintiffs objected to two rulings on evidence. The first is to the exclusion of the evidence of Mr. Jonathan W. French as to the nature of the Goniprow case and as to the parties for whom his father, the creditor, rendered legal services in that case. These services were included in the account stated between Mr. French and Dietz, and consequently the evidence could not affect the extent of the liability which the latter assumed. It is undisputed that Mr. French appeared for the corporation and Dietz. The offer of proof would not establish the fact that, having two clients, only the one for whom the greater amount of work was performed was expected to pay. The trial judge apparently considered the evidence as too remote. In any event, if the evidence was admissible, which we do not intimate, it is plain that its exclusion, in view of all the other evidence, did not seriously affect any substantial rights of the plaintiffs and did not constitute reversible error. Carbonneau v. Lachance, 307 Mass. 153. Flynn v. Growers Outlet, Inc. 307 Mass. 373. Watson v. Forbes, 307 Mass. 383.
The other objection is to the admission of an account contained in the ledger or journal of the leather company which showed that all the payments made by the corporation to Mr. French were charged to legal expenses. The
The order of the Appellate Division vacating the finding for the defendant is reversed, and judgment for the defendant, in accordance with the finding of the trial judge, is to be entered.
So ordered.
