George Lawley & Son Corp. v. Buff , 230 Mass. 21 ( 1918 )

Pierce, J.

This is an action to charge the defendant on his promise to pay the plaintiff a sum of money due and payable to the plaintiff on a promissory note of the Imperial Machine, Stamping and Welding Company, in consideration of the forbearance of the plaintiff to bring a suit against the maker of the note and the defendant to reach and apply property of the maker of the note in the possession of the defendant, in satisfaction of the plaintiff’s claim on the note. That this was. a promise to answer for the debt of another within R. L. c. 74, § 1, cl. 2, is plain.

There is no evidence that the plaintiff, the defendant and the maker of the note ever joined in an agreement whereby the defendant, in consideration of the discharge of the obligation of the maker of the note to the plaintiff, agreed to assume and pay the debt secured by the note. Griffin v. Cunningham, 183 Mass. 505. Nor is there evidence that the forbearance of the plaintiff to attach the interest of the maker of the note in property in the possession of the defendant transferred to the defendant any interest in that property which he did not before possess. Nelson v. Boynton, 3 Met. 396. Dexter v. Blanchard, 11 Allen, 365. Furbish v. Goodnow, 98 Mass. 296. Ames v. Foster, 106 Mass. 400. Carleton v. Floyd, Rounds & Go. 192 Mass. 204. See Paul v. Wilbur, 189 Mass. 48; Manning v. Anthony, 208 Mass. 399. We do not think the agreement of the defendant was an original promise, if the fact be as alleged, that the plaintiff and the defendant formally agreed to do and forbear in consideration of their mutual promises.

In support of its action the plaintiff introduced in evidence certain letters between its attorneys and the defendant; and the question raised on the report is, whether the letters of the defendant read in connection with the letters of the attorneys (to which they were replies) constitute a memorandum of the agreement sufficient to bind the defendant under the statute of frauds. R. L. c. 74> § 1, cl. 2.

The letter of the defendant dated September 14,1914, addressed to the attorneys of the plaintiff, so far as material to the issue, reads: "I have your letter of September 10th. As regards the Imperial Machine Company, — I beg to advise that my desires have not changed as regards my intention to pay off the old accounts of the Imperial Company, altho I am only under a moral obligation to do so.” The letter of the attorneys dated September 10, 1914, incorporated by reference in the defendant’s letter of September 14, reads: “As you will doubtless remember, Mr. Pattison of this office called upon you last November in reply to your letter of November 3rd concerning a claim amounting to $1,028.64 due George Lawley & Son Corporation from the-Imperial Machine, Stamping and Welding Company. It was stated to you at that time that we intended to bring suit and attempt to reach certain assets of that company held-by the Henrici Laundry Machinery Company, but upon your assurance that by January you would make arrangements so that this claim would be liquidated by payments of $100.00 each, payable each month, we did not bring any proceedings.” From both of these letters, which must be read as parts of one and a single instrument, Lee v. Butler, 167 Mass. 426, Nickerson v. Weld, 204 Mass. 346, it sufficiently appears that George Lawley and Son Corporation in November, 1913, held a claim of $1,028.64 against the Imperial Machine' Stamping and Welding Company; that it intended to bring suit and attempt to reach certain assets of that company held by the Henrici Laundry Machinery Company; and that it did not institute any proceedings because of the assurance of the defendant that he would make arrangements so the claim would be liquidated by payments of $100 each, payable each month. In February, 1916, the defendant wrote a letter in answer to a letter of the attorneys, which so far as material reads, “Answering your letter of Feb. 2d, ... In regard to your statement that I intended to liquidate the old claim of George F. Lawley & Son against the Imperial Company, — this is correct; but please note that I have changed my mind, . . .” On February 24, 1916, the defendant wrote, “Answering your letter of February 15th. . . . My verbal promises to Mr. Pattison were definitely qualified and exactly as your letter said: ‘That the Company’s condition would soon enable me to pay the claim. ’ ”

We think there was a sufficient memorandum to satisfy the requirements of the statute of frauds. The object of the statute is merely to require written evidence signed by the party to be charged. Hoyle v. Hoyle, [1893] 1 Ch. 84. As the statute affects only the mode of proof, the written unambiguous recognition of the contract and of its terms is sufficient even if it contains an express repudiation of the contract. Buxton v. Rust, L. R. 7 Ex. 279. Wilkinson v. Evans, L. R. 1 C. P. 407. Bailey v. Sweeting, 9 C. B. (N. S.) 843. Urann v. Coates, 109 Mass. 581, 585.

What we have said disposes of all questions argued on either brief. It follows that a verdict should not have been directed for the defendant, and in accordance with the terms of the report judgment must be entered for the plaintiff in the sum of $1,318.19 with interest from October 22, 1917, and costs.

So ordered.