Brightman v. Hicks

Gray, J.

The law is well settled in this Commonwealth, that, when property subject to a lien is transferred by the debtor to a third person, the latter is not liable to an action by the creditor, unless he has made a direct promise either to the debtor or the creditor to pay the debt; and that such a promise to a creditor, who neither gives up his claim against the original debtor, nor any lien upon the property, is a promise to answer for the debt of another, and must be in writing in order to satisfy the statute of frauds. Mellen v. Whipple, 1 Gray, 317. Exchange Bank v. Rice, 107 Mass. 37. Carr v. National Security Bank, Ib. 45. Nelson v. Boynton, 3 Met. 396. Curtis v. Brown, 5 Cush. 488. Furbish v. Groodnow, 98 Mass. 296. Ames v. Foster, 106 Mass. 400.

In this case, the original contract was between the plaintiff and Stephen Andrews, then the owner of the vessels, and created a debt from Andrews to the plaintiff, secured by lien on the property; and the only promises of the defendant were made orally to the plaintiff. Assuming that it would be competent for a jury to infer, from the admissions of the defendant, that the vessels had been transferred to him, (which would hardly be consistent with the terms of the plaintiff’s own bills and of his petition to enforce the lien, or with the testimony and certificate of "Vaughan, the official superintendent of the work,) the fatal difficulty remains, that there is no evidence whatever that the defendant ever promised Andrews to pay the plaintiff, or that the plaintiff ever released Andrews from his liability, or discharged the vessels from the lien, or agreed to look to the defendant in the place and stead of Andrews.

The allegations in the last count of the declaration, that the defendant’s promises to the plaintiff were made with the intent and purpose of inducing him to continue his work on the vessels and of preventing him from asserting his lien thereon, and that the plaintiff, relying upon such promises, went on and completed the work, and refrained from prosecuting his lien until, by the vessels passing into the possession of the United States, his remedy against them was lost, (even if deemed to be supported by the evidence,) cannot enable him to maintain this action. There is no allegation of fraud on the part of the defendant, or that, at the time of making the promises relied on, he did not intend to perform them. A promise, upon which the statute of frauds declares that no action shall be maintained, cannot be made effectual by estoppel, merely because it has been' acted upon by the promisee and not performed by the promisor.

Judgment on the verdict.