Plummer v. Lyman , 49 Me. 229 ( 1860 )

The opinion of the Court was drawn up by

Tenney, C. J.

The action is upon an alleged verbal promise, made by the defendants, that they would accept an order to be drawn on them by David Spear, in favor of the plaintiffs; and the cause of action alleged, is a failure to comply with the promise.

It was admitted that, in the summer of 1857, David Spear was building a vessel at Cumberland, and all the lumber for which the order was given by him was furnished by the plaintiffs, and put by him into the vessel, which was launched on Wednesday, Dec. 16, 1857, about noon, and was brought up to Portland the following Saturday evening, about eight or nine o’clock. No question is made that the plaintiffs had a lien on the vessel under the statute.

It appears from the testimony of Jesse Plummer, one of the plaintiffs, which is the most favorable evidence for them, that the defendants, having made to Spear large advances to aid him in building the vessel, which were equal, or nearly equal to the full value of the same, and they having, as they claimed, the legal title of the vessel for the security of the payment of such advances, were unwilling that the plaintiffs should enforce their lien against the vessel. One of the defendants being solicited on the part of the plaintiffs, to pay the amount of the claim of the latter against Spear, said, if they would obtain his order, as evidence of his approbation that the payment should be made, they would accept it. Soon after, the witness obtained the order of Spear on the defendants, not negotiable, payable in six months, for the balance of their claim, payment of the sum of two hundred dollars having been made by Spear at the time he gave the order, and the plaintiffs gave a receipt for the account. This order having been shown to the defendants by the witness, and they being requested to accept it, refused to do so. This was after the vessel was launched, but more than two full days before the lien would expire.

It is regarded as well settled by our law, that a written promise to accept a non-existing bill operates as an acceptance, provided the bill be drawn within a reasonable time; but a verbal promise to accept a non-existing bill has not been treated as valid. Coolidge v. Pay son, 2 Wheat., 66 ; Weston v. Clements, 3 Mass., 1; Chitty on Bills, 312, note (g).

' It is insisted for the defendants, that the promise in the case before us, if made as alleged, is within the statute of frauds, it being at most a verbal agreement to accept an order to pay a debt of another.

The testimony does not disclose a case of a promise on the part of the defendants to accept an order of Spear on them, as the consideration of a discharge of the plaintiffs’ lien on the vessel; or a promise to discharge it; or for giving to Spear a receipt by the plaintiffs of their claim; or that they signified a readiness to make the discharge of the lien, at the time they presented the order to the defendants for acceptance; and a demand on them to accept it; or that they informed them that they had given to Spear a receipt of their claim.- But the cause relied upon in support of the action is a naked promise, that the order of Spear would be accepted.-

The acceptance by the defendants of such an order of Spear on them as would discharge the account against him, would, by operation of law, discharge the lien; but this would not be the consideration of the previous verbal promise of the defendants to accept an order, not then drawn, and which might never be drawn, to pay the debt of Spear, when such discharge of the account was not a condition to the acceptance of the order.

The case differs from that of Townsley v. Summit, 2 Pet., 170, relied upon by the plaintiffs, which was a promise to accept bills .and not performed, goods having been previously received by the defendant to the amount of the bills promised to be accepted when they should be drawn. This was held to be a promise, not to pay the debt of another, but the debt of the defendant himself, — damage to the promisee furnishing as good a consideration as a benefit to the promisor.

It is not easy to perceive that the refusal to accept the order by the defendants was injurious to the plaintiffs. The receipt to Spear was valid only so far as the plaintiffs received actual payment. The order, not being accepted and not negotiable, was no discharge of that part of the account to which it was intended to apply, as between the plaintiffs and Spear. The receipt could be explained, and the plaintiffs could not be injuriously affected thereby. The defendants refused to accept the order as they had promised. They had no knowledge of the receipt when they refused to accept the order. They were not misled by the receipt, and had no reason to suppose that the lien was discharged; and they certainly could not claim an advantage from the receipt, as being a discharge of the lien, more than could Spear, as being the discharge of the balance of his debt. The plaintiffs did not treat the receipt as a discharge of the debt, or of the lien on the vessel, inasmuch as, after the defendants’ refusal to accept the order, they took out a process in order to enforce the lien by attachment, and were prevented from doing it by their own delay.

The promise of the defendants, relied upon, appertained to the debt of another, and not to their own, and is not a foundation in law for the action. Plaintiff nonsuit.

Appleton, Cutting, G-oodenow, Davis and Kent, JJ., concurred.