Abele v. Dietz

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RONAN
• Citation: 45 N.E.2d 970,312 Mass. 685
• Decision Date: 30 December 1942
• Parties: ABELE et al. v. DIETZ.

312 Mass. 685
45 N.E.2d 970

ABELE et al.
v.
DIETZ.

Supreme Judicial Court of Massachusetts, Norfolk.

Dec. 30, 1942.

Action on contract by George W. Abele and another, executors of Asa P. French, deceased, against Robert Dietz. After the institution of the action, the defendant died and Ray Dietz administratrix was made a defendant. From an order of the Appellate Division which vacated a finding for defendant, and ordered the entry of a judgment for plaintiff, the defendant appeals.

Order of the Appellate Division reversed, and judgment for defendant entered.

[45 N.E.2d 970]

Appeal from Municipal Court of Brookline; Quinn, Judge.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

B. Goldman, of Boston, for plaintiffs.

J. L. Yesley, of Boston, for defendant.

RONAN, Justice.

This is an action of contract to recover the balance alleged to be due upon an account stated, which arose out of the rendition of legal services by the plaintiffs'

[45 N.E.2d 971]

testator, Asa P. French, between October 3, 1922, and November 30, 1926. Mr. French died on September 17, 1935. His executors, who were appointed on October 28, 1935, brought this action on October 23, 1937, against Robert Dietz. Dietz has since deceased and the action is now defended by his administratrix. Dietz, a leather manufacturer, conducted business as an individual until January 17, 1924, when a corporation, named the R. Dietz Leather Company, Inc., and later the R. Dietz Leather Company, Inc., took over the business and thereafter conducted it. The corporation was petitioned into bankruptcy in May, 1930. It made a composition offer with its creditors, and was dissolved in 1935 by an act of the Legislature. Dietz was the president, treasurer and a stockholder of this corporation, and was from and after its incorporation the active manager of its business. An itemized bill running to Dietz, amounting to $4,090.95, was sent by Mr. French to Dietz on March 17, 1927. It is this bill upon which the account stated was based. It set forth in detail the services rendered in five suits, the services in the first commencing on October 3, 1922, in the second on January 2, 1924, and in the third on January 7, 1924. The services in reference to the two remaining suits began after Dietz had incorporatted his business. Dietz was a party in all these suits and the corporation was also a party in one of them. Mr. French appeared for both Dietz and the corporation. The bill sent on March 17, 1927, included a charge of $250 for ‘retainer’ due December 31, 1926, and at the end contained a note that the ‘Annual retainer of corporation and Dietz covers consultations, correspondence, advice, etc. in matters not in court.’ After March 17, 1927, Mr. French wrote several letters addressed to ‘Mr. Robert Dietz, R. Dietz Leather Company’ requesting payment. The trial judge found that the plaintiffs had proved an account stated; that the office cards of Mr. French setting forth services upon which the charges were made contained the names of Dietz and the corporation; that payments on account were made by check of the corporation; that Mr. French intended to hold Dietz and the corporation severally liable for his charges, excepting only so much therof as was represented in the retainer paid by the corporation, and that he distinguished between Dietz personally and the corporation. The judge also found that the last payment on account was made by the corporation on December 10, 1929, and that this payment was not made by Dietz personally, but that he as an officer of the corporation and not otherwise directed the making of the corporate check. He denied the plaintiffs' fifteenth request for a ruling that upon all the evidence the six-year statute of limitations, G.L.(Ter.Ed.) c. 260, § 2, was not a bar to the maintenance of the action. He accordingly found that the action was barred by the statute of limitations and found for the defendant. The defendant appealed from an order of the Appellate Division which vacated this finding on the ground that the plaintiff's fifteenth request should have been given and which ordered the entry of a judgment for the plaintiffs.

The question presented is whether upon the findings of the trial judge the payment on account by a corporation, by its check issued by its treasurer, of an indebtedness which was owed by it and by one who was its treasurer, president and manager before the statute of limitations has run against the debt constitutes, as matter of law, a part payment by the individual debtor and deprives him of the benefit of the statute.

The reason a part payment tolls the statute is that such payment is an acknowledgment of an existing indebtedness and raises an implied promise to pay the balance. Such payment need not be made personally by the debtor. It may be paid by another in his behalf with his knowledge or consent or by his direction. But whatever form the payment may take, the debtor must stand in such a relation to it as to warrant an inference that by the payment he personally intended to renew his promise to satisfy the indebtedness. Buffinton v. Chase, 152 Mass. 534, 25 N.E. 977,10 L.R.A. 123; Day v. Mayo, 154 Mass. 472, 28 N.E. 898;Emerson v. Deming, 304 Mass. 478, 23 N.E.2d 1016;Lariviere v. Lariviere, 304 Mass. 627, 24 N.E.2d 659;Provident Institution for Savings v. Merrill,...