Wheeler v. Young

• Decision Date: 05 January 1887
• Citation: 9 N.E. 531,143 Mass. 143
• Parties: WHEELER v. YOUNG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 143

9 N.E. 531

WHEELER v. YOUNG.

Supreme Judicial Court of Massachusetts, Worcester.

January 5, 1887

COUNSEL

D.B. Hubbard, for defendant.

To sustain this action it is essential that the plaintiff should prove that he paid the money at the defendant's request express or implied. 1 Chit.Pl. 361; 2 Chit.Cont. 879; Mansfield v. Edwards, 136 Mass. 15; Brown v Fales, 139 Mass. 21. There was no evidence in the case at bar to show that defendant requested plaintiff to pay the judgment recovered against him by the executor of Dolly Bond and the law will not imply such a request. 1 Chit.Pl. 361; 2 Chit.Cont. 881, 897. There was no privity of contract whatever between plaintiff and defendant. This action, if maintainable at all, should have been brought within six years from March 1, 1877. Van Ostrand v. Reed, 1 Wend. 430.

John Hopkins, for plaintiff.

Two questions are presented: (1) Do the facts established by the bill of exceptions constitute a cause of action? and (2) is the cause of action properly set out in the plaintiff's declaration? The defendant's wife, at his request borrowed money to pay his debts. The plaintiff, at the request of the defendant, assumed a legal obligation to pay the new debt thus created. See Robinson v. Green, 3 Metc. 159. The consideration for the promise to pay, which the law implies, moved from the plaintiff to the defendant at the time the former, by assuming a legal liability to repay it, procured the loan from Dolly Bond for the benefit of the defendant. The promise then was to repay the plaintiff such sum as he might have to pay under the assumed obligation, and was, in its nature, a continuing promise so long as the plaintiff's liability continued. The promise of the defendant was co-existent with the legal liability of the plaintiff; it was enforceable so long as the legal liability of the plaintiff was enforceable; it was not enforceable until that obligation was enforced or canceled by the plaintiff. The plaintiff had no cause of action on the defendant's promise until he had canceled the obligation which he had assumed at the request of the defendant. He had no cause of action until he had paid the money he was legally liable to pay. Whiting v. Aldrich, 117 Mass. 582. To sustain the declaration the plaintiff must prove actual payment of the money; a request on the part of the defendant, either express or implied, to make the payment. 2 Greenl.Ev. § 114; Nichols v. Bucknam, 117 Mass. 448; Goodridge v. Lord, 10 Mass. 483; Packard v. Lienow, 12 Mass. 11.

OPINION

GARDNER, J.

The fair meaning of the bill of exceptions is this: The defendant requested his wife to borrow of Dolly Bond a certain amount of money to pay his debt, and to give her therefor a promissory note jointly signed by the wife and by the plaintiff. This was done; the money was received and applied to the payment of the defendant's debt. In borrowing the money, in giving the note, and in paying the debt the wife was the defendant's duly-authorized agent. Through his...