317 Mass. 325 | Mass. | 1944
The defendant Nathanson appealed from a final decree requiring her to pay to the plaintiffs certain sums for which they had become liable at her request upon a mortgage note given by them with respect to real estate the title to which the female plaintiff held under an oral trust for said defendant, who controlled and managed the real estate and received the profits. The bill alleged that said defendant promised the plaintiffs to pay the note.
The evidence is not reported. There is no finding of facts. The final decree is within the scope of the bill. It is to be assumed that the unreported evidence supported the decree. Commissioner of Insurance v. Commonwealth
The plaintiffs were not required, before obtaining the decree, to satisfy the note. The plaintiffs are entitled to exoneration. Broadway National Bank v. Hayward, 285 Mass. 459, 465. Killoren v. Hernan, 303 Mass. 93. Morley Construction Co. v. Maryland Casualty Co. 300 U. S. 185. Williston, Contracts (Rev. ed. 1936) § 1275. Payment to the plaintiffs, instead of to the payee of the note, was properly ordered, in view of the express promise to pay the note. Williston, Contracts (Rev. ed. 1936) § 1408. Broadway National Bank v. Hayward, 285 Mass. 459, 466. Leshefsky v. American Employers’ Ins. Co. 293 Mass. 164, 173. Nutter v. Mroczka, 303 Mass. 343, 346. McRae v. Pope, 311 Mass. 500, 506.
That promise plainly was not an oral contract for the sale of an interest in lands, within G. L. (Ter. Ed.) c. 259, § 1, Fourth. Neither was it a “promise to answer for the debt ... of another,” within § 1, Second. A promise to the debtor, not to the creditor, to pay the debt, is not within the statute of frauds. Williston, Contracts (Rev. ed. 1936) §§ 460, 482. Hubon v. Park, 116 Mass. 541. Hawes v. Murphy, 191 Mass. 469, 472. Colpitts v. L. C. Fisher Co. 289 Mass. 232, 234.
Decree, affirmed with costs.
