108 Mass. 246 | Mass. | 1871
The law is well settled in this Commonwealth, that, when property subject to a lien is transferred by the debtor to a third person, the latter is not liable to an action by the creditor, unless he has made a direct promise either to the debtor or the creditor to pay the debt; and that such a promise to a creditor, who neither gives up his claim against the original debtor, nor any lien upon the property, is a promise to answer for the debt of another, and must be in writing in order to satisfy the statute of frauds. Mellen v. Whipple, 1 Gray, 317. Exchange Bank v. Rice, 107 Mass. 37. Carr v. National Security Bank, Ib. 45. Nelson v. Boynton, 3 Met. 396. Curtis v. Brown, 5 Cush. 488. Furbish v. Groodnow, 98 Mass. 296. Ames v. Foster, 106 Mass. 400.
In this case, the original contract was between the plaintiff and Stephen Andrews, then the owner of the vessels, and created a debt from Andrews to the plaintiff, secured by lien on the property; and the only promises of the defendant were made orally to the plaintiff. Assuming that it would be competent for a jury to infer, from the admissions of the defendant, that the vessels had been transferred to him, (which would hardly be consistent with the terms of the plaintiff’s own bills and of his petition to enforce the lien, or with the testimony and certificate of "Vaughan, the official superintendent of the work,) the fatal difficulty remains, that there is no evidence whatever that the defendant ever promised Andrews to pay the plaintiff, or that the plaintiff ever released Andrews from his liability, or discharged the vessels from the lien, or agreed to look to the defendant in the place and stead of Andrews.
Judgment on the verdict.