313 Mass. 405 | Mass. | 1943
This action of contract was tried in the Superior Court without jury. The first count of the declaration was on an account annexed. The second and third counts alleged that the defendant made separate assignments to the plaintiff of moneys due the defendant from separate sources, and that the defendant had collected the sums assigned, but had not paid them to the plaintiff. The defendant answered that the plaintiff offered to compromise its claim “for a certain liquidated sum”; that the defendant accepted the offer and paid the sum agreed upon, and that the plaintiff sought to secure a secret advantage in fraud of the other creditors of the defendant. It was agreed that the amount specified in the first count was correct, and that the defendant executed the alleged instruments of assignment, collected the moneys represented therein, and did not pay the same to the plaintiff.
The alleged instruments of assignment each contained the following statement: “it being expressly understood and agreed that any sums of money collected by . . . [the defendant] from . . . [his alleged debtor] to the extent of . . . [the amount stated] will be kept separate by . . . [him] and held in trust for the . . . [plaintiff].” The trial judge, who made findings of fact, found that the plaintiff was entitled to recover the full amount claimed, and denied certain requests of the defendant for rulings. We consider the requests that have been argued by the defendant.
The defendant collected the sums that he had agreed to keep separate and hold in trust for the plaintiff, and did not pay them to it. He must be held to have assumed an obligation, in the circumstances, to pay this money to the plaintiff, and for his failure so to do, an action for moneys had and received would lie. Arms v. Ashley, 4 Pick. 73, 73. Sherman v. Werby, 280 Mass. 157, 160. G. E. Lothrop Theatres Co. v. Edison Electric Illuminating Co. of Boston, 290 Mass. 189, 192. Although the second and third counts may not allege technically that they are for money had and received, we think that, in effect, they do. No question of pleading has been raised. See Botti v. Venice Grocery Co. 309 Mass. 450, 458; Krinsky v. Stevens Coal Sales Co. Inc. 309 Mass. 528, 533. Moreover the judge found that the alleged assignments were valid and were for the full amounts due from the defendant’s debtors. See Andrews Electric, Inc. v. St. Alphonse Catholic Total Abstinence Society, 233 Mass. 20, 22. There was no error in the denial of the fourth and fifth requests.
The defendant’s eighth request, that “the agreement between the parties, however arrived at, for payment of the . . . [sums specified in the assignments] in full, was in fraud of other creditors, parties to the composition agreement,” was denied as being inconsistent with the facts found. There was evidence that the defendant’s attorney sent let
The remaining request that was argued, that “on all the evidence the plaintiff cannot prevail,” was denied for the reason that it was inconsistent with the facts found. There was evidence that the defendant’s check for less than the entire amount due was sent to the plaintiff, purportedly in accordance with an offer of the plaintiff’s attorneys that had been made some fifteen days earlier. This check remains uncashed, and after it was sent the plaintiff’s attorneys made another offer of settlement which was not acted upon. The judge, in connection with his finding that the agreement between the parties to accept in satisfaction and discharge of the liquidated debt a sum less than the full amount, also stated that such an agreement was not binding unless there was some consideration to support it
The facts found bring the case within the general rule that a promise to accept a lesser sum in discharge of a debt for a greater amount is not binding. First National Bank of Boston v. Cartoni, 295 Mass. 75, 78. Dickman v. McClellan, 302 Mass. 87, 88. Emerson v. Deming, 304 Mass. 478, 481. See Rosenblatt v. Holstein Rubber Co. 281 Mass. 297, 300-303. There was no error in the denial of the first request.
Exceptions overruled.