Paul v. Wilbur , 189 Mass. 48 ( 1905 )

Loring, J.

[After the foregoing statement of the case.] We are of opinion that the exceptions must be overruled. It was of no consequence whether the plaintiff made out a case on the facts found by the auditor apart from the additional facts put in evidence at the trial. That exception must be overruled for that "reason.

There is no question of the law on which the plaintiff’s right of recovery depends. The rule is stated with great accuracy by Morton, J. in Pew v. Gloucester National Bank, 130 Mass. 391. He there says, at p. 395: “To render such party liable as a debtor under an implied promise, it must be shown, not only that the services were valuable, but also that they were rendered under such circumstances as to raise the fair presumption that the parties intended and understood that they were to be paid for; or, at least, that the circumstances were such that a reasonable man in the same situation with the person who receives and is benefited by them would and ought to understand that compensation was to be paid for them.” See also Sawyer v. Pawners' Bank, 6 Allen, 207; Newmarket Manuf. Co. v. Coon, 150 Mass. 566; Bartlett v. Mystic River Co. 151 Mass. 433; and see in this connection, Higgins v. Shepard, 182 Mass. 364, 367.

We do not agree with the defendant’s contention that under this rule the plaintiff as matter of law has not made out a case. The question of what ought to have been understood is to be determined on what was known to the person who was parting with his property. Facts known to the defendant who took the property not known to the plaintiff who parted with his property and not communicated by the defendant to the plaintiff cannot be taken into consideration. Tn the case at bar we assume that the plaintiff had done the work which produced the papers in question, at the request of Dickinson, and that Dickinson then owed him for them. But when the plaintiff was told that Dickinson had sold the railroad enterprise to the defendant and when he was asked to furnish this purchaser with the papers which he had prepared to carry it into effect, it would be assumed by the plaintiff, who had not been paid, that his bill for these papers would be paid by the person who had taken over the enterprise and was to make use of his papers, at least in the absence of information that there was a special arrangement.

We find nothing inconsistent with this position in the fact that by accident other charges (since withdrawn) were included in the bill sent to Dickinson to be forwarded to the defendant, nor in the letter accompanying that bill.

There is nothing in the defendant’s contention that the promise sued on is a special promise to answer for the debt of another within R. L. c. 74, § 1, cl. 2, unless Dickinson was discharged. That section does not apply where the promisor receives something from the promisee for his own benefit. The point is settled by a number of authorities beginning with Alger v. Scoville, 1 Gray, 391, and ending with Stratton v. Hill, 134 Mass. 27, and is recognized in the two cases cited by the defendant (in which it did not apply), Furbish v. Goodnow, 98 Mass. 296, at pp. 297, 298; Curtis v. Brown, 5 Cush. 488, 491; and in the recent ease of Griffin v. Cunningham, 183 Mass. 505, 507. In the case at bar the defendant got from the plaintiff the papers which he wanted to use and did use in carrying out the enterprise in question, in which he had an interest, although under some circumstances not the whole and only interest.

Exceptions overruled.