Rice v. Howland
| Decision Date | 18 October 1888 |
| Parties | RICE et al. v. HOWLAND. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M.E. Couch, for plaintiff.
A.W. Preston and H.L. Dawes, for defendant.
The note on which the suit is brought was without consideration. The defendant held several notes against the plaintiff's intestate which were due and payable. The intestate, paid money to the defendant, and the defendant gave the note in suit. Whether the payment was made upon the notes was a question of fact, which concerned the consideration of the defendant's note, and upon which the fact that he gave the note was not conclusive. If the payment was made by the plaintiff's intestate to extinguish indebtedness from him to the defendant, and not to create indebtedness from the defendant to him, it was not made in consideration of the defendant's promise to pay him, and the promise was without consideration. The evidence shows that the auditor found that the money was paid upon the notes, and that the promise of the defendant contained in the note which he gave as a voucher or memorandum of the payment was without consideration. Sargent v. Southgate, 5 Pick. 312; Braynard v. Fisher, 6 Pick. 355; Smith v. Bartholomew, 1 Metc. 278; 1 Chit.Cont. 61; Hare, Cont. 216. The payments made upon the notes declared on in set-off took them out of the operation of the statute of limitations, and the defendant is entitled to recover the balance due upon the notes to him. Judgment for defendant affirmed.
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... ... Alden, 46 Barb. 272; 29 Am. & Eng. Enc. Law, 518; ... Citizens' Nat. Bank v. Donnell, 195 U.S. 369, 49 ... L.Ed. 240, 25 S.Ct. 49; Rice v. Howland, 147 Mass. 407, 18 ... N.E. 229 ... GOSS, ... J. FISK, Ch. J., dissenting ... ... OPINION ... ...
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First Nat. Bank of Boston v. Cartoni
...of limitations commenced to run again at the time of these payments and that the plaintiff's claim is not barred. Rice v. Howland, 147 Mass. 407, 18 N.E. 229;Kennedy v. Drake, 225 Mass. 303, 114 N.E. 310;Turner v. Buttrick, 272 Mass. 261, 264, 265, 172 N.E. 246. Although the defendant had n......
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First Nat. Bank of Boston v. Cartoni
...statute of limitations commenced to run again at the time of these payments and that the plaintiff's claim is not barred. Rice v. Howland, 147 Mass. 407, 18 N.E. 229; Kennedy v. Drake, 225 Mass. 303, 114 N.E. Turner v. Buttrick, 272 Mass. 261, 264, 265, 172 N.E. 246. Although the defendant ......