165 Mass. 81 | Mass. | 1896
If the parties mutually agreed that the de-' fendant should pay the plaintiff what Picard owed him, and the plaintiff accepted the defendant as his debtor in the place of Picard, and released Picard, the contract thus entered into would be valid and binding. Wood v. Corcoran, 1 Allen, 405. Lord v. Davison, 3 Allen, 131. Caswell v. Fellows, 110 Mass. 52. The release of Picard would constitute a sufficient consideration for the defendant’s promise to the plaintiff. Caswell v. Fellows, ubi supra. And the promise declared on being an original undertaking and not a collateral one, and not including the giving of a mortgage by the defendant on his real estate, would not be within the statute of frauds. Lord v. Davison and Wood v. Corcoran, ubi supra. If there was no doubt as to the terms of the agreement, it would be a question of law for the court whether a substitution had been effected. Sinclair v. Richardson, 12 Vt. 33. But if the terms of the agreement were equivocal or uncertain, then it would be a question of fact for the jury, under suitable instructions. Sinclair v. Richardson, ubi supra. If the agreement of the plaintiff to release Picard and take the defendant in his place was conditional upon the defendant’s giving the mortgages, or such condition formed an essential part of it, then it is clear that there was no substitution, for the mortgages were not given. But if the defendant promised to pay the debt, and the plaintiff, relying on that, released Picard, so that if the defendant did not perform his agree-merit the plaintiff’s only remedy would be an action against him for the breach of it, then the substitution was complete, and Picard became entitled to a discharge of the mortgages which he and his wife had given to the plaintiff, the debt which they were given to secure having thus been cancelled and discharged. And it would not affect the plaintiff’s right of recovery that the defendant also orally agreed to secure the plaintiff by a mortgage on his real estate. Rand v. Mather, 11 Cush. 1. Haynes v. Nice, 100 Mass. 327.
It was in dispute between the parties which of the two constructions indicated above should be given to the transactian ; the defendant contending in substance that it should be the former, and the plaintiff the latter. There is language and there are circumstances and considerations consistent with
The conduct of the plaintiff and his conversations with the defendant tend to show that the transaction was what he insists that it was. The terms in which he and Picard state the agreement are also consistent with that view. The plaintiff testified, amongst other things, “ I told him [defendant] that he made me discharge Picard, and he was responsible for it” (the debt). This does not appear to have been contradicted by the defendant, and certainly would have some tendency to show that the agreement was as the plaintiff contended, and that the stipulated consideration, namely, Picard’s release, had been furnished by the plaintiff. And it might have been found, as the fair iinplication of the conduct and talk of the parties, that the papers were left with Mr. Higginson with authority to deliver them to Picard, and that, if leaving them with him was not enough of itself, the evidence of Picard’s asking for them was evidence of an acceptance by him, and should have been admitted.
The question, “ What was the reason you took these papers ? ” has not been argued; but it may become material upon another trial, and we think that it should have been admitted for the purpose of enabling the plaintiff to show, if he could, that he did not take them with a view to rescinding the contract.
The question of variance does not appear from the exceptions to have been raised at the trial, and cannot be raised here for the first time.
A majority of the court think that the exceptions should be sustained, and it is so ordered.
¡Exceptions sustained.
