Barnett v. Rosen

• Decision Date: 05 March 1920
• Citation: 235 Mass. 244,126 N.E. 386
• Parties: BARNETT v. ROSEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 244

126 N.E. 386

BARNETT

v.ROSEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1920.

Exceptions from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Suit in equity by Nathan Barnett against Sarah Rosen and others, resulting in order dismissing the bill, and plaintiff excepts. Exceptions overruled.Nathan Barnett, of Boston, pro se.

H. C. Dunbar, of Boston, for defendants.

BRALEY, J.

The plaintiff, a judgment creditor, brings suit under R. L. c. 159, § 3, cl. 7, to reach and apply in satisfaction of a judgment recovered against the defendant Rosen the amount coming to her under a policy of fire insurance issued by the codefendant. That company having paid into court a certain sum to abide the final decree, the bill by stipulation of parties has been dismissed against the company; and the trial court having ordered a decree dismissing the bill the case is before us on the plaintiff's exceptions to the admission of evidence, to the refusal to rule as requested, and to the order of dismissal. We perceive no error in the admission of evidence. The answer avers that by an accord and satisfaction the judgment has been satisfied and the defendant was properly allowed to introduce evidence of the negotiations and of the settlement which included the obtainment of the necessary funds to make payment as well as the form in which payment was made. Way v. Greer, 196 Mass. 237, 81 N. E. 1002. The remaining question is whether as matter of law the defendant under the agreement had been discharged from all further liability. The evidence not being reported the findings of fact of the presiding judge are conclusive. It appears that, before judgment against her was obtained, the plaintiff recovered judgment against the defendant's husband on which execution issued and he was cited for examination as a poor debtor. The proceedings, however, were terminated by the failure of the judgment creditor to appear at the time and place to which the proceedings had been continued for his further examination. The plaintiff previously had cited the defendant for examination as a poor debtor and after she had defaulted and a capias issued the plaintiff in person and the defendant by counsel orally agreed that if the defendant would pay ‘thirty-five dollars' he would receive that amount in full satisfaction of both executions. The defendant borrowed $20, which was paid to the plaintiff, who thereupon signed and delivered the following receipt:

‘Received of Mrs. Sarah Rosen twenty and no/100 dollars and upon payment to me within one month of a balance of fifteen dollars I will indorse a statement of satisfaction in full upon an execution which I have against Sarah Rosen and a similar indorsement upon an execution against Harry Rosen and I will execute general release of all demands against said Harry and Sarah Rosen.’

It further appears that ‘the balance of fifteen dollars' was paid to the plaintiff, who thereupon indorsed upon each execution that full satisfaction had been received and delivered them to the defendant.

A further finding, in justice to the plaintiff, should be referred to, namely:

That ‘at the time of making said oral contract and the execution of said written instrument the plaintiff told the defendant's attorney that the receipt of said sum and his agreement referred to in said receipt was a nudum pactum and that he was not bound by his oral agreement or his signed receipt and that the defendant would still be liable for the balance of her judgment, notwithstanding he had agreed to accept a smaller sum in satisfaction thereof.’

The judge, however, was satisfied and expressly finds that the defendant's attorney, acting in her behalf and knowing the plaintiff to be a member of the bar, did not understand or believe that the plaintiff proposed to collect the balance due upon the execution against her ‘notwithstanding his agreement and his written promise and did not expect him so to do.’

[5] The requests all rest upon the single proposition that the promise of the plaintiff is unenforceable because it is unsupported by any valuable consideration. We are of opinion that the judge properly refused to give any of the requests and correctly ruled that the bill should be dismissed. The borrowing by the defendant from her counsel of a part of the amount agreed upon, who gave his check therefor to the plaintiff, does not bring the case within the rule that, where the creditor receives in full satisfaction of his debt the promissory note of a third person for a smaller sum than the amount of the debt, it is a good accord and satisfaction. Brooks v. White, 2 Metc. 283,37 Am. Dec. 95;Guild v. Butler, 127 Mass. 386; Bidder v. Bridges, L. R. [1891] 2 Ch. 406. The money, furthermore, was not borrowed at the plaintiff's request; nor did he know from what source it was to be...