Frost v. Gage , 83 Mass. 262 ( 1861 )

Bigelow, C. J.

The facts proved in this case bring it clearly within Arnold v. Lyman, 17 Mass. 400, Hall v. Mansion, Ib. 575, Carnegie v. Morrison, 2 Met. 381, and others oi the same class, the authority and correctness of which have been recognized and confirmed in the recent cases of Miller v. Whipple, 1 Gray, 317, and Dow v. Clark, 7 Gray, 198. The defendant did not execute any instrument under seal by which he covenanted to perform the trust on which he received the property conveyed to him. But he accepted the trust, and proceeded to execute it by selling the property, converting it into money, and paying all' the creditors of the assignor except the plaintiff, to whom, on demand duly made, he has refused to pay the share of the money in his hands belonging to the plaintiff. On these facts the plaintiff was clearly entitled to recover. No special promise was necessary to render the defendant liable in this action. Therefore the objection to the second count in the declaration, that there is no allegation of any promise by the defendant, cannot prevail.- The law creates the privity and implies the promise. Hall v. Marston, ubi supra.

The case does not come within Dow v. Clark, above cited, because it appears that the defendant, when he accepted the trust, was informed of the names of all the creditors of the assignor, and knew to whom he would be liable by reason of his taking on himself the execution of the trust. Besides ; the facts show that the defendant had paid to all the other creditors their share of the money received by him under the assignment, leaving only the plaintiff unpaid. The parties in interest are therefore reduced to the plaintiff and defendant. In this respect the' case comes within Fitch v. Workam, 9 Met. 517.

There may have been objections to the second count in the declaration which were not taken at the trial. These we have not considered, because the defendant must be confined to those which are stated in the exceptions. Excepticns sustained.