Fears v. Story

131 Mass. 47 | Mass. | 1881

Soule, J.

The plaintiffs had liens on the defendant’s schooner Moses Knowlton for the amount due them for materials furnished to a former owner of the schooner in her construction. They refused to permit the schooner to go to sea unless the liens were paid. Thereupon the defendant made an oral promise to pay one third of the amount of their liens in cash, and the balance when he sold the vessel, and the plaintiffs accepted the offer, permitted the vessel to go to sea, and did not prosecute their liens. The defendant paid a part of the amount of the liens, and afterward sold the vessel. He now contends that the plaintiffs cannot maintain this action for the unpaid balance, because the original debtor was not released when his promise was made, and the liens have not been since discharged, so that the promise was within the statute of frauds, being a verbal promise to pay the debt of another.

By permitting the vessel to go to sea and forbearing to enforce their liens, the plaintiffs abandoned, for the time being at least, the advantage which their liens gave them for securing their debts, for the benefit of the defendant, who thereby gained the opportunity to send his vessel to sea, and put her in the way of earning money, and beyond the jurisdiction of the courts of the Commonwealth, so that they could not enforce the liens; and the further opportunity, with the assent of the plaintiffs, to sell the vessel. It might well be urged by one purchasing her that he took her discharged of the liens, by virtue of the agreement between the parties, so that the liens are absolutely gone; but whether this be so or not, we are of opinion that the facts of the case bring it within the rule which has been repeatedly laid down by the court in its decisions; that, when the plaintiff has, in consideration of the promise by the defendant, relinquished some lien, benefit or advantage for securing his debt, and transferred that interest, or some equivalent benefit, to the defendant, the promise is a new and independent contract, although the result is that the payment of the debt of another would be incidentally effected by the performance of the contract. The decisions of this court, as well as some English cases to this effect, are collated in the opinion in Wills v. Brown, 118 Mass. 137.

The judge who presided at the trial in the Superior Court was right in refusing to rule as requested by the defendant, and the ruling actually made was correct.

Exceptions overruled.