Massachusetts Mut. Life Ins. Co. v. Green
| Citation | 70 N.E. 202,185 Mass. 306 |
| Parties | MASSACHUSETTS MUT. LIFE INS. CO. v. GREEN. |
| Decision Date | 30 March 1904 |
| Court | United States State Supreme Judicial Court of Massachusetts |
J. B. Carroll and W. H. McClintock, for appellant.
Wm. M McClench, for appellee.
In this case both the plaintiff and the defendant owned land in the northeast one-fourth of section 13, township 37 north, range 13, in Cook county, Ill. The plaintiff received from the proper authorities a bill for taxes on a lot in said northeast one-fourth, which it paid, supposing it was for a tax on its land. It turned out subsequently that it was for a tax on the defendant's land, and thereupon this action was brought to recover the amount of the tax from the defendant. The declaration contained four counts. The first was a count on an account annexed; the second stated the facts, and concluded with a statement that by reason thereof the defendant became bound to repay the money to the plaintiff, because it was paid for the defendant's benefit; the third count added that, upon the mistake being discovered, the defendant agreed to repay the amount to the plaintiff; and in the fourth the plaintiff counted on a promise to repay the amount if the plaintiff would give the defendant an opportunity to examine her own accounts. It is alleged that all the counts are for the same cause of action.
The second count is bad because it is not alleged that the money was paid at the defendant's request. Roxbury v Worcester Turnpike Corp., 2 Pick. 41; Winsor v Savage, 9 Metc. 346; Middleborough v. Taunton, 2 Cush. 406; South Scituate v. Hanover, 9 Gray, 420; Bicknell v. Bicknell, 111 Mass. 265; Mansfield v. Edwards, 136 Mass. 15, 49 Am. Rep. 1. This defect in the second count is (so the plaintiff contends) cured by the allegation in the third and fourth counts of a subsequent express promise on the part of the defendant to pay this sum to the plaintiff. Its contention is that a subsequent promise is equivalent to a previous request, and that Gleason v. Dyke, 22 Pick. 390, is an authority for that proposition; that Gleason v. Dyke was cited with approval in Smith v. Bartholomew, 1 Metc. 276, 25 Am. Dec. 365, and never has been overruled. But, although it is not referred to by name, Gleason v. Dyke was overruled by Dearborn v. Bowman, 3 Metc. 155, so far as this ground for the decision in Gleason v. Dyke goes. The original case of Gleason v. Dyke was well decided on the ground that the plaintiff was forced to pay the money to protect the estate which the defendant had a right to redeem and did redeem. In the subsequent case of Winsor v. Savage, 9 Metc. 346, 348, it is again stated that a subsequent ratification is equivalent to an original request. But this statement was obitor, and Dearborn v. Bowman has since been affirmed on this point in Shepherd v. Young, 8 Gray, 152, 69 Am. Dec. 242, Chamberlin v. Whitford, 102 Mass. 448, and Moore v. Elmer, 180 Mass. 17, 61 N.E. 259, and must be taken to be the law of the commonwealth. It is not necessary to discuss the cases cited by the plaintiff from other jurisdictions.
The plaintiff has not argued that the fourth count is helped by the allegation of a consideration which it contains. The defendant's right to examine her own books was not within the plaintiff's control, and his giving her an opportunity to do what she had a right to do is not a valid consideration for a promise on her part.
But we are of opinion that the demurrer to the count on the account annexed should have been overruled. The defendant's contention here is that it is not alleged in the account annexed that the money was paid at the request of the defendant. It seems to be assumed in Rider v. Robbins, 13 Mass. 284, that such an allegation was necessary at common law, while in Newmarket Iron Foundry v. Harvey, 23 N.H. 395, it seems to have been assumed that, when the account annexed was used for money paid, the law imported the allegation that it was paid at the request of the defendant. However it may have been at common law, we are of opinion that under the practice act such an allegation is, by legal intendment, included in the count. It is provided by the practice act (Rev. Laws, c. 173, § 6) cl. 7, that the common counts shall not be used...
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