255 Mass. 587 | Mass. | 1926
The plaintiff declared, in contract, that it and Henry P. Nawn accounted together on November 1, 1918; that a balance of $3,913.08 was found due from Nawn which he agreed to pay but never paid. The defendants, in addition to general denial and payment, pleaded the statute of frauds and the statute of limitations. The case was referred to an auditor who reported findings of fact upon which, unless the statutes of frauds and of limitations constituted a defence, the defendants, as executors of Henry P. Nawn, would be liable. At the trial before a jury, the plaintiff put in the report of the auditor and rested. All other evidence was introduced by the defendants. The judge refused to instruct the jury in accord with reqdests by the plaintiff, refused to order a verdict in accord with the auditor’s report for the plaintiff, and submitted to the jury two issues of fact upon a charge confined to those issues. The jury found upon the first of these issues that Henry P. Nawn did not sign the originals of certain exhibits. This made a finding upon the second issue unnecessary. Thereupon the judge ordered and the jury returned a verdict for the defendants. The plaintiff saved exceptions to these refusals and order.
There was evidence that in 1900 one John J. Nawn, a cousin of the deceased Henry P. Nawn, was indebted to a partnership, Cavanaugh Brothers, in the amount claimed in the declaration. He also was in debt to Henry P. Nawn, and owed the National Shawmut Bank $5,100 on a note indorsed by Henry Nawn and by Cavanaugh Brothers. Under date of February 17, 1900, he deeded certain pieces of real estate to Henry P. Nawn who, as a condition of the delivery of the deeds to himself, executed a declaration of trust under seal which declared that the conveyances were made to him “to sell and turn into cash, and pay up all debts of John J;
December 16,1919, Henry P. Nawn assigned the mortgage for $5,993.25 to William A. Gaston, then an officer of the National Shawmut Bank, who discharged it on August 2, 1921. On September 26, 1921, Henry P. Nawn discharged the mortgage for $4,500. Both discharges were recorded November 10, 1921. Henry P. Nawn died in March, 1922. This action was begun March 29, 1923.
The exceptions must be overruled.
The action is at law on an account stated. Such an action lies only where there have been transactions previous to the statement of the account which create a relation of debtor and creditor. Chase v. Chase, 191 Mass. 556. Tucker v. Columbian National Life Ins. Co. 232 Mass. 224, 229. It is inapplicable to enforce a promise to pay the debt of another. French v. French, 2 Man. & Gr. 644. The promise here is to pay the debt of John J. Nawn.
The plaintiff -contends, however, that it has acquired a right to sue by virtue of the declaration of trust signed by Henry Nawn in 1900. That declaration is under seal. The only promise which it contains is a promise to John J. Nawn. He is the only person who can sue upon it. A third person cannot maintain an action on a sealed instrument to which he is not a party. Millard v. Baldwin, 3 Gray, 484. Boyden v. Hill, 198 Mass. 477, 487. Forbes v. Thorpe, 209 Mass. 570, 581.
If the reconveyance made in 1903 was a breach of trust, any right at law or in equity to proceed against Henry P. Nawn has been taken away by the statute of limitations. The act was an open disavowal of the trust alleged, O’Brien v. McSherry, 222 Mass. 147, which probably would set the statute in operation, Merriam v. Hassam, 14 Allen, 516, so that the bar would be complete in 1910. But if — because the Cavanaugh Brothers were ignorant in regard to it, O’Brien v. O’Brien, 238 Mass. 403, 411 — the statute did not begin to run until 1915, when they learned actually of the reconveyance, the bar was complete in 1921. Young v. Walker, 224 Mass. 491.
The fourth request for instructions was waived. No claim of fraud on the part of Henry P. Ná,wn is made. What has been said disposes of the exceptions taken to the refusal to instruct as requested.
The judge could not have directed a verdict for the plaintiff rightly. Upon the finding of fact made by the jury, after instructions to which no exception was saved, he was right in directing a verdict for the defendants.
Exceptions overruled.