183 Mass. 505 | Mass. | 1903
If the promise made to the plaintiff by the defendant was nothing more than an oral agreement on his part to pay any balance due Griffiths that remained after a settlement of liens for labor, the undertaking was collateral, as the original debt owed by Griffiths to the plaintiff was not extinguished. And as it is not claimed that the defendant derived any benefit from the arrangement, the statute of frauds on which the defendant relies would be a full defence. Curtis v. Brown, 5 Cush. 488. Manley v. Geagan, 105 Mass. 445. O’Connell v. Mount Holyoke College, 174 Mass. 511, 514.
But there was something more. What the parties agreed to was in dispute. And as the case is before us on a refusal to rule that upon all the evidence the plaintiff could not recover, it becomes necessary to determine whether there was any evidence to sustain the verdict.
The plaintiff puts his case on a substitution of debtors, and his evidence in substance tended to prove that Griffiths, who was owing him a large amount for lumber that had been used in reconstructing a house belonging to the defendant, with whom Griffiths had a contract to furnish materials and do the work, agreed that the balance coming to him under the contract should be paid by the defendant to the plaintiff in settlement of his bill for the lumber; that the defendant, at whose suggestion the
The question is what was the intention of the parties, and in order to determine the character of the transaction all the circumstances are to be considered.
The substitution sought to be accomplished was a change of debtors to the extent of the plaintiff’s claim against Griffiths, and it was not necessary that the whole indebtedness of the defendant to Griffiths, if it exceeded the amount of the plaintiff’s bill, should have been discharged. But the arrangement between the parties was enough under the evidence in this case to fully discharge the defendant from any liability under the building contract, as there was no contention that the amount due the plaintiff from Griffiths was not more than the sum finally paid to him by the defendant in the settlement made between them.
There was also evidence from which the jury might find that the original debt of Griffiths to the plaintiff had been discharged, though this follows if mutual consent to the substitution is proved. Walker v. Sherman, 11 Met. 170. If the claim of the plaintiff against him had been converted into a claim of the plaintiff against the defendant, it is not necessary to consider the transaction as a possible assignment of a part of the claim of Griffiths against Cunningham, and that in such a case the plaintiff could have relief only in equity. See James v. Newton, 142 Mass. 366, 374; Holbrook v. Payne, 151 Mass. 383, 384.
Under the plaintiff’s evidence, the defendant, by accepting the order of Griffiths, who signed it with the understanding that the bill of the plaintiff was to be paid by the defendant, contracted not only to pay the debt, but also as a part of the transaction undertook that the debt should be paid to the plaintiff, while the plaintiff at the same time agreed to accept the defendant as his debtor in place of Griffiths.
It would not be enough that the defendant accepted the order; he must go further and promise to pay the plaintiff. The con
For these reasons, the case does not fall within Curtis v. Brown, ubi supra, as argued by the defendant; but is to be governed by Caswell v. Fellows, 110 Mass. 52, 54, Eden v. Chaffee, 160 Mass. 225, Trudeau v. Poutre, 165 Mass. 81, and Plummer v. Grreenwood, 169 Mass. 584. It is to be distinguished from the line of decisions in which this court has held that a stranger to a simple contract from whom no consideration moves cannot sue on it or enforce a promise made to another for his benefit. Exchange Bank v. Rice, 107 Mass. 37; Borden v. Boardman, 157 Mass. 410, and cases cited. Aldrich v. Carpenter, 160 Mass. 166.
In the case at bar the plaintiff was the promisee, and the contract between him and the defendant gave all the contractual rights provided for his -benefit and had an ample consideration to support it by the release of the original debtor.
If there had been no conflict of testimony, and the terms of the alleged substitution of debtors was not in dispute, whether enough had been made out to establish the claimed novation would have been a matter of law for the court. But there were two possible conclusions on the evidence: if the defendant was believed, the plaintiff could not prevail; while if the plaintiff’s testimony was accepted as true, a complete substitution had taken place and the defendant was liable. Obviously it could not be ruled as matter of law that the plaintiff was not entitled to recover; and as the case was submitted to the jury under instructions not excepted to, the presumption is that they were full and accurate, and the order must be
Exceptions overruled.
