130 Mass. 581 | Mass. | 1881
It appears that Buchanan, Ware and Company had a contract with the defendant for the delivery of certain goods, and on January 8,1876, they signed an order directed to the defendant to deliver to the Wood and Light Machine .Company two thousand dollars in the said goods. The order was accepted by the defendant’s treasurer on the same day, and, on January 10 following, was given to the company to hold as
This order was for the delivery of two thousand dollars to be paid in merchandise, and is not negotiable. Gushee v. Eddy, 11 Gray, 502. It was said by Mr. Justice Metcalf in Sears v. Lawrence, 15 Gray, 267, The law and incidents of a bill of exchange do not attach to such an instrument.”
By the acceptance merely of this order the defendant entered into no contract with the Wood and Light Machine Company. The company was no party to the contract, and if the defendant made any binding contract by accepting the order, it was with Buchanan, Ware and Company.
This case falls within the rule laid down in numerous decisions in our reports, and which is well stated in Exchange Bank v. Rice, 107 Mass. 37, “ that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract, and consequently that a promise made by one person to another, for the benefit of a third person who is a stranger to the consideration, will not support an action by the latter.” See also Millard v. Baldwin, 3 Gray, 484; Field v. Crawford, 6 Gray, 116; Dow v. Clark, 7 Gray, 198; Pettee v. Peppard, 120 Mass. 522 ; Gamwell v. Pomeroy, 121 Mass. 207; Cottage Street Church v. Kendall, 121 Mass. 528; Prentice v. Brimhall, 123 Mass. 291.
The exceptions to this rule, so far as they have been at any time recognized in this Commonwealth, are stated ánd discussed in Mellen v. Whipple, 1 Gray, 317, as well as in Exchange Bank v. Rice, and need not be further considered, inasmuch as the case at bar does not fall within them.
Nor do the cases of Walker v. Sherman, 11 Met. 170, Sears v. Lawrence, 15 Gray, 267, and Eastern Railroad v. Benedict, 15 Gray, 289, furnish any support to the plaintiffs. The facts in those cases distinguish them from this case.
In Walker v. Sherman, it was held that a suit could be maintained by the payee against the acceptor of an order for merchandise, upon proof that the drawer was in debt to the payee when the order was drawn, that it was given in payment of the debt, and was accepted at the request of the drawee when it was drawn; all the parties being present at the acceptance,
In Sears v. Lawrence, it was held that an oral promise by the drawer of an order payable in merchandise, after he knew it had not been fulfilled, to deliver the merchandise, would not support an action. The remark of Mr. Justice Metcalf in delivering the judgment, that the plaintiff could maintain an action against the acceptor if there was a legal consideration for the acceptance, must be understood to mean, if the acceptance was made after the order passed into the hands of the plaintiff, by a promise to him. The remark, not being necessary to the decision of the case, is not so carefully limited and qualified as it would otherwise have been.
In Eastern Railroad v. Benedict, one Fuller agreed with the defendant to deliver him a quantity of goods to be paid for in the stock of a corporation, and afterwards drew his order on the defendant to give a certain number of shares to the plaintiff, and the defendant promised the plaintiff to deliver the stock accordingly, and the action was maintained. In the case at bar there was no promise to the plaintiffs by the defendant, at the
Exceptions sustained.
A new trial was had at September term 1879, before Bit-man, J., without a jury. The. plaintiffs were allowed, against
On or about January 8, 1876, the Wood and Light Machine Company had completed" a lathe which it had been manufacturing on account and on the order of Buchanan, Ware and Company, who had employed the Wood and Light Machine Company to manufacture it in consequence of an order which
The judge found, as a fact, that the lathe was delivered to the defendant on the faith and credit of the money payment and the notes secured by the order; that the lathe would not have been delivered if the order had not been given and accepted; and that a demand was duly made upon the defendant, which it refused to comply with.
The defendant asked the judge to rule that the plaintiffs could not recover. The judge refused so to rule, but ruled that- the plaintiffs were entitled to recover for the amounts due on the last four notes, and found for the plaintiffs accordingly. The defendants alleged exceptions, which were filed on
“And the plaintiffs say that they are the assignees in bankruptcy of the Wood and Light Machine Company as alleged in the preceding counts, and before the said corporation was adjudicated bankrupt, to wit, on or about January 8, 1876, in consideration that the said Wood and Light Machine Company would deliver to the defendant a certain lathe of great value, which the said Wood and Light Machine Company had there- ■ tofore manufactured for Buchanan, Ware and Company, and which said Buchanan, Ware and Company had agreed to pay cash for on delivery, and would receive in part payment therefor certain promissory notes of Buchanan, Ware and Company, the ’ defendant accepted and delivered to the said Wood and Light Machine Company, the order, a copy whereof is annexed to the first count of the declaration, said order having been drawn in the presence of the defendant and of said Buchanan, Ware and Company and of the said Wood and Light Machine Company, and then and there accepted as aforesaid by the defendant; and thereupon the said Wood and Light Machine Company did deliver said lathe to the defendant, on the faith and credit of said order and acceptance, and received said order as collateral security for said notes, and said notes were not paid but still remain unpaid; and thereupon, by the premises, the defendant promised to deliver to said Wood and Light Machine Company the goods mentioned in said order, yet the defendant, though often requested, refused and neglected, and still refuses and neglects, to deliver said goods to said Wood and Light Machine Company, or to the plaintiffs, to whom upon the said assignment in bankruptcy the said order and acceptance passed, and therefore a cause of action hath accrued to the plaintiffs to recover against the defendant the value of the goods described in said order.”
On September 22, 1879, the judge allowed the bill of exceptions, and two days afterwards ordered that the amendment be allowed.
The case was argued by the same counsel.
By the Court. The decisions already made at a former stage of this case, ante, 582, and in Morse v. Adams, ante, 585,
A similar decision was made on May 22,1879, in Suffolk, in the case of Robert M. Morse, Jr. vs. Ephraim Adams & another.
Endicott, J. This action is brought upon an order for the delivery of certain books, drawn in favor of the plaintiff, by W. F. Gill & Co., on the defendants, and accepted by them. The acceptance was made, while the order was in the hands of the drawers, without any communication with the plaintiff, and without any knowledge, on the part of the defendants, of the transaction between the drawers and the plaintiff. It was a promise to W. F. Gill & Co., and though in the form of a draft or bill of exchange was not negotiable, because payable in merchandise. At the time the order was delivered to the plaintiff, he had no knowledge of the arrangement between the drawers and the defendants, and did not know whether the books were in the defendants’ possession.
It is immaterial what consideration for the acceptance passed between the drawers and the defendants. No act of the drawers in delivering the order to the plaintiff could give him the right to sue on it in his own name. It was a mere chose in action, the equitable title to which could be assigned, but not the legal title. The case is similar to Rogers v. Union Stone Co. supra, and is governed by the same principles. Exceptions sustained.
C. P. Greenough, for the plaintiff.
F. S. Hesseltine, for the defendant.
A similar decision was also made the same day, in Suffolk, in the case of /
Edwin Clement & another vs. Edward B. Earle.
Contract for money had and received. At the trial in the Superior Court, before Brigham, 0. J., it appeared that John P. Cooper, who was building a house for the defendant under a contract under seal, bought his lumber of the plaintiffs’ agent, John F. Ayer. On April 10, 1875, Cooper, who then owed the plaintiffs $225, gave to Ayer the following order in writing: “Boston, April 10, 1877. Mr. Earle will please pay to J. F. Ayer, or order, two hundred dollars, and charge same to account of John P. Cooper.” There was evidence tending to show that on April 10 the defendant was owing Cooper, under his contract, more than $200; that he
The judge instructed the jury as follows: “ The plaintiffs can recover upon proof only that Ayer, having sold the plaintiffs’ lumber to Cooper, received from the latter, in payment for that lumber, his written order to the defendant to pay the amount of that order, and presented that order when the defendant had in his possession money due and payable to Cooper to the amount of that order, and orally promised Ayer to hold the same for the payment of that order, and, having thus promised, otherwise disposed of the money which he had promised to hold for the payment of that order.”
The jury returned a verdict for the plaintiffs for $208.80; and the defendant alleged exceptions. .
H. E. Swasey Sf G. R. Swasey, for the defendant.
C. G. Fall, for the plaintiffs.
Endicott, J. If the defendant had accepted the draft of Cooper, and paid the same to the plaintiffs’ agent, the debt of the defendant to Cooper would have been extinguished pro tanto; and the demand of the plaintiffs against Cooper would have been satisfied to the extent of two hundred dollars. The defendant did not accept the draft, but orally promised the plaintiffs’ agent to pay him the amount of the plaintiffs’ bill against Cooper. Of this agreement Cooper does not appear to have had any knowledge. It was simply a promise to pay to the plaintiffs the amount due them from Cooper, and was wholly without consideration. The defendant, not having accepted the draft, was still liable to pay his debt to Cooper; and the plaintiffs’ demand against Cooper was not extinguished in whole or in part by the promise. The action for money had and received cannot, therefore, be maintained. See Parlclmrst v. Dickerson, 21 Pick. 307; LuffY. Pope, 5 Hill, 413; Liversidge v. Broadbent, 4 H. & IT. 603; Rogers v. Union Stone Co. and Morse v. Adams, supra. Exceptions sustained.