Barnett v. Rosen

235 Mass. 244 | Mass. | 1920

Braley, J.

The plaintiff, a judgment creditor, brings suit under R. L. c. 159, § 3, cl. 7, to reach and apply in satisfaction of a judgment recovered against the defendant Rosen the amount coming to her under a policy of fire insurance issued by the co-defendant, the insurance company. That company having paid into court a certain sum to abide the final decree, the bill by stipulation of parties has been dismissed against the company; and, the trial court having ordered a decree dismissing the bill, the case is before us on the plaintiff’s exceptions to the admission of evidence, to the refusal .to rule as requested, and to the order of dismissal.

We perceive no error in the admission of evidence. The answer avers that by an accord and satisfaction the judgment has been satisfied and the defendant properly was allowed to introduce evidence of the negotiations and of the settlement which included the obtainment of the necessary funds to make payment as well as the form in which payment was made. Way v. Greer, 196 Mass. 237.

The remaining question is, whether as matter of law the defendant under the agreement had been discharged from all further liability. The evidence not being reported, the findings of fact of the trial judge are conclusive. It appears that, before judgment against her was obtained, the plaintiff recovered judgment against the defendant’s husband on which execution issued and he was cited for examination as a poor debtor. The proceedings however were terminated by the failure of the judgment creditor to appear at the time and place to which the proceedings had been continued for his further examination. The plaintiff previously had cited the defendant for examination as a poor debtor and, after she had defaulted and a copias had issued, the plaintiff in person and the defendant by counsel orally agreed that if the defendant would pay “thirty-five dollars” the plaintiff would receive that amount in full satisfaction of both executions. The defendant borrowed $20 which was paid to the plaintiff who thereupon signed and delivered the following receipt: “Received of Mrs. Sarah Rosen twenty no/100 Dollars, and upon payment to me within one month of a balance of fifteen dollars, I will endorse a statement of satisfaction in full upon an execution which I have against Sarah Rosen and a similar endorsement upon an execution against Harry Rosen, and I will execute general release of all demands against said Harry and Sarah Rosen.” It further appears that the “balance of fifteen dollars” was paid to the plaintiff who thereupon indorsed upon each execution that full satisfaction had been received and delivered them to the defendant.

A further finding, in justice to the plaintiff, should be referred to, namely: that “At the time of making of said oral contract and the execution of said written instrument, the plaintiff told the defendant’s attorney that the receipt of said sum, and his agreement referred to in said receipt, was a nudum pactum and that he was not bound by his oral agreement or his signed receipt, and that the defendant would still be liable for the balance of her judgment, nothwithstanding he had agreed to accept a smaller sum in satisfaction thereof.” The judge however was satisfied and expressly finds that the defendant’s attorney, acting in her behalf and knowing the plaintiff to be a member of the bar, did not understand nor believe that the plaintiff proposed to collect the balance due upon the execution against her “notwithstanding his agreement and his written promise, and did not expect him so to do.”

The requests all rest upon the single proposition that the promise of the plaintiff is unenforceable because it is unsupported by any valuable consideration. We are of opinion that the judge properly refused to give any of the requests and correctly ruled that the bill should be dismissed.

The borrowing by the defendant from her counsel of a part of the amount agreed upon who gave his check therefor to the plaintiff, does not bring the case within the rule, that where the creditor receives in full satisfaction of his debt the promissory note of a third person for a smaller sum than the amount of the debt, it is a good accord and satisfaction. Brooks v. White, 2 Met. 283. Guild v. Butler, 127 Mass. 386. Bidder v. Bridges, 37 Ch. D. 406. The money furthermore was not borrowed at the plaintiff’s request; nor did he know from what source it was to be obtained. Harriman v. Harriman, 12 Gray, 341. Specialty Glass Co. v. Daley, 172 Mass. 460. Compare Bunge v. Koop, 48 N. Y. 225, 229. It also is settled in this Commonwealth that neither the payment of a part of the debt by the debtor when the entire indebtedness is due and payable, nor a partial payment by him of the debt in consideration that such payment shall operate as a discharge of the debt of a third person to the creditor, is sufficient to support a promise not made under seal to release the promisee from all further liability on the remainder of the principal obligation. Weber v. Couch, 134 Mass. 26. Slade v. Mutrie, 156 Mass. 19, 20, and cases cited. Specialty Glass Co. v. Daley, 172 Mass. 460. Gilman v. Cary, 198 Mass. 318, 320. Smith v. Johnson, 224 Mass. 50. Lait v. Sears, 226 Mass. 119, 125. But the judge further found: that “Thereafter, about March 21, 1916, the plaintiff personally, and the attorney representing the defendant, conferred in regard to the adjustment of the claim of the plaintiff against the defendant, and on or about that date it was orally agreed between the plaintiff and said attorney that if the defendant would pay to the plaintiff $35, the plaintiff would receive the same in full satisfaction of his execution against the defendant and against Harry Rosen; and the defendant then and there, acting through her said attorney, agreed to pay said amount in full satisfaction of both executions.” The plaintiff, in return for the payment to him by the defendant of any sum on her husband’s debt could make a binding and enforceable agreement, and the agreement found cannot as matter of law be differentiated. It was not to pay the plaintiff a less sum in full satisfaction of her own liquidated and overdue debt of a larger amount, but it was an agreement also to pay this amount in satisfaction of the execution against Harry Rosen, her husband, to whom she was a stranger and on which she was not liable, as well as the execution against herself. The plaintiff, as we have said, having indorsed on both executions satisfaction in full, the indorsement was of itself an application by him not merely in satisfaction of the defendant’s debt but of the debt of her husband. It follows that the contract being entire and not severable at the option of the plaintiff, her agreement to pay any sum whatever on the execution against her husband was a sufficient consideran tian for a valid agreement by the plaintiff to discharge her own debt. Brooks v. White, 2 Met. 283, 286. Bowker v. Childs, 3 Align, 434. Hastings v. Lovejoy, 140 Mass. 261. Marshall v. Bullard, 114 Iowa, 462. Melroy v. Kemmerer, 218 Penn. St. 381, 384. 1 R C. L. 182, § 11. 1 C. J. 535, § 37, note 31; 545, § 51, note 27, where many authorities are collected.

It is enough that the consideration is valuable: it need not be adequate. Train v. Gold, 5 Pick. 380. Perkins v. Lockwood, 100 Mass. 249, 250. Hastings v. Lovejoy, 140 Mass. 261, 264.

Exceptions overruled.