Fish v. Thomas , 71 Mass. 45 ( 1855 )

Shaw, C. J.

As the parties have left the case upon the testimony of Handy, and the facts agreed, the court are of opinion that the plaintiffs are entitled to recover. The plaintiffs claimed to have a lien on the defendant’s vessel, with the existing means of enforcing it by an, admiralty process. Their agreement to forbear to attempt to enforce that lien was a good consideration for the defendant’s promise to pay if that suit should be decided in favor of a party having a similar claim.

If it was not the defendant’s own debt, capable of being enforced by a personal suit against him, it was a debt for which the defendant’s property stood hypothecated; his obvious purpose was, to get a release of his own property without additional expense. It was a consideration moving directly from the plaintiffs to the defendant. It was not a promise to pay the debt of another, in the sense of the statute of frauds; it was a promise to pay a debt for which his property was responsible, and which was therefore his debt sub modo.

The defendant is estopped from denying that the plaintiffs had a lien; that was alleged on one side and denied on the other, and was the very subject of controversy ; the parties agreed that it should abide the' decision of a court of competent jurisdiction, in a case then pending; it was decided in favor of the plaintiffs, and the defendant is bound by it.

Judgment for the plaintiffs.