250 Mass. 479 | Mass. | 1925
In August of 1892, the defendant with two partners, all of Denver, Colorado, constituting the firm of
At the trial in the Superior Court there was evidence to sustain the foregoing statement. There was no evidence of forbearance or of any agreement to forbear other than such inferences as may be drawn from the facts so stated and the letters from the defendant referred to. The judge at first refused to direct a verdict for the defendant, who claimed an exception. He ruled that the promise, if any, was limited by its words to the defendant’s share, one third, of the original liability; that the only consideration for the alleged promise was the antecedent liability; that no new or additional consideration was necessary to make the promise enforceable; and that no interest could be recovered other than six per cent per annum from the date of the writ. To these instructions the plaintiff excepted, as well as to the judge’s refusal to give certain instructions, which the plaintiff requested, in regard to forbearance as a consideration. The jury found for the plaintiff for one third of the $3,593.71, with interest from the date of the writ. Thereafter, in accordance with leave reserved under G. L. c. 231, § 120, the judge, upon motion, ordered entry to be made of verdict for the defendant. The case is here on the plaintiff’s exceptions.
If the plaintiff was not entitled to go to the jury, he is not harmed by the instructions actually given to the jury or by the refusal to give the instructions requested. We consider only the exception to the order directing a verdict for the defendant.
The cause of action, if any, upon which the suit was brought was not barred by the statute of limitations, G. L. c. 260, § 9. No action could accrue upon that promise until the defendant was able financially to meet a judgment thereon, Custy v. Donlan, 159 Mass. 245, Gillingham v. Brown, 178 Mass. 417, Tebo v. Robinson, 100 N. Y. 27, and there was no sufficient evidence to justify a ruling that he had been so able for six years prior to July 1, 1921. The evidence was not sufficient to determine whether the statute
It is the established law in this Commonwealth that mere forbearance without agreement is not enough to support a new promise to pay. Mecorney v. Stanley, 8 Cush. 85. Manter v. Churchill, 127 Mass. 31. Way v. Dunham, 166 Mass. 263; and that neither a promise to do, nor the doing of merely what the debtor already is bound to do is a sufficient consideration for such an agreement. Warren v. Hodge, 121 Mass. 106, Smith v. Bartholomew, 1 Met. 276, Jennings v. Chase, 10 Allen, 526, Wilson v. Powers, 130 Mass. 127. Both plaintiff and defendant testified, yet there was no evidence of any forbearance to sue due to reliance on the promise, or in performance of any obligation to forbear, or in acceptance of any offer to pay if forbearance were given.
We are not led to a different conclusion by the authorities cited by the plaintiff. In Lonsdale v. Brown, 15 Fed. Cas. 855, the suit was on the original undertaking, and there was consideration for the forbearance; in Tebo v. Robinson, the court did not consider the question of consideration; with Breed v. Hillhouse, 7 Conn. 523, we are unable to agree; while the cases cited from our own reports, Train v. Gold, 5 Pick. 380, Drury v. Fay, 14 Pick. 326, Boyd v. Freize, 5 Gray, 553, Walker v. Sherman, 11 Met. 170, 172, Burr v. Wilcox, 13 Allen, 269, Wald v. Arnold, 168 Mass. 134, Gill v. Gibson, 225 Mass. 226, and Little v. Blunt, 9 Pick. 488, are either clearly distinguishable on their facts from the case before us, or are in substantial accord with the law as herein stated. The judge was right in directing the verdict for the defendant.
Exceptions overruled.