Harrison v. Moran, 163 Mass. 495

Harrison v. Moran

163 Mass. 495 | Mass. | 1895

Field, C. J.

The defendant is clearly liable to the plaintiff in the sum of $500, unless the payment of it to Sullivan under the facts offered in evidence relieved the defendant of liability. The contention is, that, before the agreement of May 5, 1892, was executed between the plaintiff and the defendant as partners, Sullivan, Harrison, and one Barnett had been partners, *498and as such owed one Dougharty $500; and that Sullivan ordered the defendant to pay out of a deposit fund of $2,000, furnished in equal parts by the plaintiff and Sullivan, $500 to the plaintiff, that the plaintiff might pay the debt due to Dough-arty ; that the plaintiff received this money, but did not pay the debt; and that therefore Sullivan had the right to demand of the defendant in this action the $500 held by him under the agreement of May 5, 1892, for the benefit of the plaintiff. The defendant offered evidence that, on Sullivan’s demand, he paid this sum to Sullivan, although it was not contended that this was done with the knowledge or consent of the plaintiff. The state of the accounts between Sullivan and the plaintiff, arising out of transactions occurring between them before the execution of the agreement of May 5, 1892, does not appear, but even if it had appeared that the plaintiff owed Sullivan $500 on account of these transactions, as they were not within the scope of that agreement, the defendant had no right to pay to Sullivan, without the plaintiff’s assent, the debt which the plaintiff owed to Sullivan, out of money which the defendant held under that agreement, and for which he had given to the plaintiff the receipt put in evidence. There is nothing in the agreement or receipt which authorizes the payment of such a debt out of the money held by the defendant under the agreement. It is no defence for a debtor that he has voluntarily paid to a creditor of the plaintiff what he owed the plaintiff, unless such payment was authorized or assented to by the plaintiff. Credits sometimes can be attached and taken on execution, but without legal process a debtor cannot compel the person to whom he is indebted to assent to the payment of the debt to a creditor of that person.

Exceptions overruled.