Reed v. Home Savings Bank , 127 Mass. 295 ( 1879 )

Lord, J.

Instead of inquiring whether the president of the defendant bank had authority to make the written agreement declared upon, and whether such agreement was obligatory upon the defendant, it seems more appropriate to consider whether the plaintiff’s intestate was a party to the agreement. It is very clear that he was not. Under that agreement, no obligation was assumed by him, and no promise was made to him. At the time the agreement was made, Samuel G. Reed was the owner of a valuable estate in Boston, upon which the defendant held a mortgage for a large amount. Interest on that mortgage was overdue and in arrear. The taxes for the year 1876, which Samuel G Reed was bound to pay, were unpaid. A new instaknent of interest was about to become due. The agreement was made March 31,1877, and such interest was to become due April 13, 1877. In that condition of things, Samuel G. Reed requested of the defendant to extend the time of the payment of that interest for the term of five months from said 13th of April, he, the said Samuel G. Reed, agreeing to pay interest upon that interest during such extension. The agreement recites that the $1391.25 was paid by G. E. W. Reed; but it recites also that it was paid on account of interest due from Samuel G. Reed, and it was therefore as really a payment by Samuel G. Reed of his own indebtedness as if it had been made by his own hand instead of by the hand of G. E. W. Reed. In consideration of that payment, and upon the condition that the taxes for the year 1876 should be paid by G. E. W. Reed or Samuel G. Reed, (and it is not important to inquire whether the payment of money already due or the discharge of an obligation already existing is a consideration for any new promise,) at Samuel G. Reed’s request, and upon his engagement to pay interest for the forbearance, the time for the payment of the interest was agreed to be extended five months. This agreement was an agreement with Samuel G. Reed, and with him alone. The plaintiff’s intestate was no party to it, and consequently no action can be maintained by him upon it. It is therefore wholly immaterial, in this suit, whether the agreement is one by which the defendant corporation is bound.

It is contended that, because the bank took possession of the estate for the purpose of foreclosure before the expiration of the five months, the plaintiff has the right to recover of the defendant the money which he had thus paid, upon the count for money had and received. It is to be observed that no evidence was offered that the taxes of 187b had been paid by either G. E. W. Reed or Samuel G. Reed; but, on the other hand, it does appear that the taxes for 1876 were not so paid, but were paid by the defendant. We do not, however, deem it necessary to consider whether, as between the defendant and Samuel G. Reed, there had been a breach of the agreement by either party; for the only question now before us is whether the money paid by G. E. W. Reed was paid under such circumstances that in equity and good conscience the defendant is not entitled to hold it. There can be no doubt on this question. The money was paid with full knowledge of all the facts. It was paid to the defendant’s own use, was paid in discharge of an actual indebtedness to the defendant, and was received by it in discharge of such indebtedness, and Samuel G. Reed has had the full benefit of the payment, which was made expressly upon his account. Under such circumstances, the law raises no implied promise to repay the money. If there were a collateral agreement between the defendant and the plaintiff’s intestate, upon sufficient consideration, that the defendant would in any contingency repay the amount, or if, by reason of non-compliance with any such agreement, the defendant agreed to answer in damages to that amount, or to any other amount, no evidence of such collateral agreement was offered, and there is nothing in the case which tends to show that the money was not properly paid and properly received by the defendant on account of the indebtedness of Samuel G. Reed.

Judgment on the verdict.