Manning v. Anthony

208 Mass. 399 | Mass. | 1911

Braley, J.

The evidence warranted the special findings of the jury, that the defendant agreed to pay the overdue mortgage note if the plaintiff would not foreclose, and that in reliance upon the promise foreclosure proceedings were not instituted. The title to the equity of redemption stood in the defendant’s name, but the note and mortgage having been given by his grantor, the principal defense is, that, if the promise was collateral, no sufficient memorandum in writing was ever given, or if original, the agreement was not to be performed within one year from its date, and the action, therefore, is barred by R. L. c. 74, § 1, cl. 2, 5. The last contention, if it were not disposed of by the very terms of the agreement, is settled by the third special finding of the jury, that the period of performance was understood to be less than the statutory time. Roberts v. Rockbottom Co. 7 Met. 46. If a special promise to answer for the debt of another must be evidenced by a memorandum or note in writing signed by the party to be charged, even if the consideration expressed therein may be shown by extrinsic evidence, the testimony is plenary, that the defendant’s controlling motive was to prevent a foreclosure for his own benefit, or, as he testified, to protect the interests of the corporation with which he was hough neither- could have been compelled by suit >te of the mortgagor. Ames v. Foster, 106 Mass. 400. Carleton v. Floyd, Rounds & Co. 192 Mass. 204. R. L. c. 74, § 2. Bogigian v. Booklovers Library, 193 Mass. 444. The dependant's promise, as the jury specially found, was to pay lich the property could have been held, and, the aearance to press the right of foreclosure having snt consideration to support the promise, the ruling tract was independent of the statute was right. Mackin v. Dwyer, 205 Mass. 472, 475, and cases cited. Fish v. Thomas, 5 Gray, 45. Fears v. Story, 131 Mass. 47. Stratton v. Hill, 134 Mass. 27, 30. Paul v. Wilbur, 189 Mass. 48, 52.

iant’s evidence having tended to prove that he nded to act in a representative capacity, he cons question should have been submitted to the jury, judge erred in directing a general verdict for the a the special findings. It is clear from the record lest was not made until after the return of the *s under the first two questions. But, the defendig called to his attention the question of agency, idently understood when the testimony closed, and he jury, that the only matter of law the defendant intended to raise was that which we have discussed. If the defendant desired to present this question he should have asked for a ruling before the judge instructed the jury. It came too late as a matter of right after the special findings had been submitted and answered. Keohane, petitioner, 179 Mass. 69. Bi. the general verdict simultaneously returned was at once set aside by the judge on his own motion without any objection being made by the parties, as no instructions had been given in reference to the amount which the plaintiffs were entitled to recover. A general verdict, however, was necessary at some stage of the proceedings, and the defendant then for the first time asked the judge to rule, that upon all the evidence in the case there was nothing for the jury and that a verdict should be ordered for the defendant, and that, if the defendant promised as the jury had found, a verdict for the plaintiffs could not be ordered. The judge properly could have refused, as we have said, to entertain this request. But he did not take this course. His final reply after a long colloquy with the counsel for the defendant, that his requests were refused, and “ your exceptions noted ” saved the point now pressed. The jury then were instructed further to find the time when performance was due from the defendant, and also as to the amount of their verdict, which the judge ordered for the plaintiffs.

But the exceptions, although open, cannot be sustained. The ruling that the agreement, if either entirely oral or evidenced by the letters which passed between the parties, was an original and not a collateral contract, left the question of fact to be determined whether the defendant’s promise was unconditional and absolute, as the plaintiffs contended, or whether, as the defendant testified, it was conditional upon a sale of the property which he was trying to arrange but which he did not complete because, as he notified the plaintiffs, his efforts to sell had not been successful. The request that a verdict be ordered for the defendant was rightly refused, and under instructions to which no exceptions were taken to the omission to refer to any questian of agency, the jury were correctly instructed, “ that an agreement 'of some sort was made there is no question. What the agreement was is the issue here.” By their special findings the jury decided that the defendant’s promise was his own unqualified undertaking to pay the debt as the plaintiffs alleged. It followed that no further question of fact as to the defendant’s liability remained to be proved, and, the amount not having been in dispute, the judge properly ordered a verdict for the plaintiffs. Raymond v. Crown & Eagle Mills, 2 Met. 319. Winsor v. Griggs, 5 Cush. 210. Welch v. Goodwin, 123 Mass. 71. Doucette v. Baldwin, 194 Mass. 131, 135.

Exceptions overruled.