Kehoe v. Patton

• Decision Date: 30 November 1901
• Citation: 50 A. 655,23 R.I. 360
• Parties: KEHOE v. PATTON.
• Court: Rhode Island Supreme Court

50 A. 655

23 R.I. 360

KEHOE

v. PATTON.

Supreme Court of Rhode Island.

Nov. 30, 1901.

Action by Edward Kehoe against A. B. Patton. There was judgment for plaintiff after decision of one justice of the appellate division, jury trial having been waived, and defendant petitions for a new trial. See 42 Atl. 868. Petition denied, and judgment for plaintiff entered on the decision.

The following is the opinion of one justice (ROGERS, J.):

"This is an action of assumpsit to recover the amount of a debt, and costs in obtaining judgment thereon, due and owing from one Peter Doyle to the plaintiff, and amounting to $214, and the costs to $4.25, and which debt and costs, it is alleged, the defendant promised said Doyle to pay as part of the consideration for a deed of land made by said Doyle to the defendant. From the evidence I find the facts to be that said Doyle was indebted to the plaintiff in the sum of $214; that, being so indebted, the plaintiff brought suit against him, and recovered judgment for said amount and for costs, amounting to $4.25, and that said plaintiff was a judgment creditor of said Doyle, on the 14th day of March, 1894, of said aggregated amounts; that on said lastmentioned date said Peter Doyle and his wife joined in a deed of conveyance of certain land to the defendant, the interest of said Doyle in said land being one undivided half part thereof, and the consideration of said deed, so far as Peter Doyle's interest in the land was concerned, was said defendant's promise to him to pay said debt to the plaintiff, with certain other indebtedness of said Doyle to divers other parties; that after the making of said promise by the defendant to said Doyle, and after the execution and delivery of said deed from said Doyle to the defendant, the plaintiff brought a bill in equity, which is still pending, against said defendant and said Doyle, to avoid said deed as having been made in fraud of creditors, and which said bill in equity was commenced before the bringing of the case at bar. The defendant pleaded especially the pendency of the bill in equity as a bar to the maintenance of this action, but the appellate division sustained a demurrer to said plea, so the case stood for trial on the general issue. In the opinion of the court, the promise made by the defendant to Doyle inured to the benefit of the plaintiff. Urquhart v. Brayton, 12 R. I. 169. Unless something has occurred since the making of that promise to prevent the plaintiff from recovering thereon, the plaintiff would be entitled to recover. The defendant claims that the plaintiff, having sued Doyle in equity to avoid the deed, did not accept the provision in his favor arising out of defendant's promise as a part consideration of the deed to pay Doyle's debt to him, and that that provision or promise in the plaintiff's favor has been thereby waived, rescinded, or barred. The appellate division has already decided in this case that bringing the suit in equity did not bar this action, and the defendant's claim seems to me to be practically but a repetition of his plea in bar. The defendant claims that Doyle released him before the bringing of this action from further...