Barber v. Rathvon

• Decision Date: 09 January 1924
• Citation: 250 Mass. 479,145 N.E. 866
• Parties: BARBER v. RATHVON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 479

145 N.E. 866

BARBER

v.RATHVON.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1924.

Exceptions from Superior Court, Suffolk County; Henry T. Lummus, Judge.

Action of contract by John W. Barber against William R. Rathvon to recover a debt represented by certain lost notes. After finding for plaintiff by jury, verdict, under authority of G. L. c. 231, § 120, was entered for defendant, and plaintiff excepts. Exceptions overruled.

S. R. Cutler, of Boston, for plaintiff.

R. E. Buffum, of Boston, for defendant.

WAIT, J.

In August of 1892, the defendant with two partners, all of Denver, Colo., constituting the firm of Taylor & Rathvon, were insolvent and endeavoring to make a settlement with their creditors. They owed $3,593.71 to a Boston partnership of which the plaintiff was a member. The plaintiff was visiting the defendant at Denver, and as a result of a conference held on August 9, 1892, at the defendant's house with the partners in Taylor & Rathvon, the plaintiff's firm received seven notes (six for $500 each and one for $593.71) signed by the three partners bearing interest at 8 per cent., dated at Denver, Colo., May 1, 1892, but actually executed there in September, 1892. The plaintiff now owns his partner's interest in the notes. The notes themselves have been lost. The plaintiff cannot recall the date on which they were made payable. No demand for payment had been made upon them before the date of the writ in this action, and no suit has ever been brought upon them. The plaintiff and his partners, in August of 1892, and ever since, have been citizens of Massachusetts. The defendant's partners never have been residents of Massachusetts. The defendant, except for 2 1/2 years from 1908, to 1910, was resident in Colorado from 1892 until 1918. He resided in Massachusetts before 1892, was in Massachusetts in the period 1908 to 1910, and has resided here since 1918. The plaintiff and the defendant in 1892 were close friends, and have maintained the friendship ever since. They corresponded, and in 1892, 1894, and 1896 the defendant wrote to the plaintiff letters in which, among other things, he referred to the old indebtedness. In a letter of July 16, 1894, in which the defendant referred to certain lots in Denver, which, apparently, had been transferred in some way to the plaintiff as security for the notes given in 1892, he wrote:

‘Now I hardly expect ever to be able to clean up my share of the old debts, though if the money ever comes to me, I will so apply it, but both my wife and I feel that we owe to you and yours more than a mere business obligation, and as I have before told you, if the means to pay ever comes to us, yours shall be the first debt lifted.'

The only ‘old debts' or ‘debt’ referred to are the obligation of Taylor & Rathvon, and the seven notes given in settlement of it. This suit is brought upon the promise containedin the words quoted. The defendant admits that when the suit was brought, on July 1, 1921, he was and now is ‘financially able to pay a sum of money equal to that declared for in this case.'

At the trial in the superior court there was evidence to sustain the foregoing statement. There was no evidence of forbearance or of any agreement to forbear other than such inferences as may be drawn from the facts so stated and the letters from the defendant referred to. The judge refused to direct a verdict for the defendant, who claimed an exception. He ruled that the promise, if any, was limited by its words to the defendant's share, one third, of the original liability; that the only consideration for the alleged promise was the antecedent liability; that no new or additional consideration was necessary to make the promise enforceable; and that no interest could be recovered other than six per cent. per annum from the date of the writ. To these instructions the plaintiff excepted, as well as to the judge's refusal to give certain instructions which the plaintiff requested in regard to forbearance as a consideration. The jury found for the plaintiff for one-third of the $3,593.71, with interest from the date of the writ. Thereafter in accord with leave reserved under G. L. c. 231, § 120, the judge, upon motion, ordered entry to be made of verdict for the defendant. The case is here on the plaintiff's exceptions.

If the plaintiff was not entitled to go to the jury, he is not harmed by the instructions actually given to the jury or by the refusal to give the instructions requested. We consider only the exception to the order directing a verdict for the defendant.

The cause of action if any, upon which the suit was brought was not barred by the statute of limitations, G. L. c. 260, § 9. No action could accrue upon that promise until the defendant was able financially to meet a judgment thereon; Custy v. Donlan, 159 Mass. 245, 34 N. E. 360,38 Am. St. Rep. 419;Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122,55 L. R. A. 320;Tebo v. Robinson, 100 N. Y. 27, 2 N. E. 383; and there was no sufficient evidence to justify a ruling that he had been so able for six years prior to July 1, 1921. The evidence was not sufficient to determine whether the statute of limitations had run upon the notes given in 1892; for there was nothing but speculation to determine when they became due. This is not a case of a suit on an obligation where the remedy has been lost through the operation of the statute of limitations, or of a discharge in bankruptcy or of a defense of minority, where a new promise is held to waive the legal bar existing and to establish the conditions under which a recovery may be had according to the terms of the new promise. In such cases the new promise is treated as supported by the original consideration. Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122,55 L....