Drury v. Fay

Massachusetts Supreme Judicial Court

Drury v. Fay

31 Mass. 326

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1833

StatusPublished

This text of 31 Mass. 326 (Drury v. Fay) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Drury v. Fay, 31 Mass. 326 (Mass. 1833).

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Opinion

Per Curiam.

The contract signed by the defendant’s intestate was founded on a valid consideration, even admitting that he received no money from Henry Valentine. The prin-" ciple is well established, that an injury to the promisee, occasioned by the act of the promisor, without any benefit to the latter, will support a promise. Here the sureties, having become uneasy under their responsibility for the guardians, had a right to seek to be discharged from their obligation on the bond, but upon receiving this promise from the intestate, they, abstained from instituting the proceedings prescribed by the statute for that purpose. It was not necessary that they should enter into an actual stipulation for, delay or forbearance.

But we think it was not competent to the defendant to offer evidence to contradict the writing on which the action is' founded. Lawson Valentine therein acknowledges the receipt of a sum of money, and promises to apply it in a particular manner, for the benefit of the plaintiffs. Whether he had received it or not, they could not know, as the transaction was between him and Henry Valentine, but they might well presume that he had received it, and he could not be permitted to say tnat he had deceived them.

In regard to the amount of damages, the defendant contends that he is liable for no more than $210-91 ; but the question is to be determined by the contract. The promise is, to ap ply $ 749-67 towards indemnifying the plaintiffs “ from a cer [329]*329tain bond given by Henry Valentine as principal and said Drury and Wyman as sureties,” and not from loss occasioned „ by unfaithful administration on the part of Henry Valentine alone. The reference to him was merely by way of description, to designate the bond. The taking of security from Samuel Haven was not a waiver of the plaintiffs’ rights on this contract, and they are entitled to recover the whole sum named in it, with interest from the commencement of the action.

Nonsuit taken off and defendant defaulted.

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Per Curiam.

The contract signed by the defendant’s intestate was founded on a valid consideration, even admitting that he received no money from Henry Valentine. The prin-" ciple is well established, that an injury to the promisee, occasioned by the act of the promisor, without any benefit to the latter, will support a promise. Here the sureties, having become uneasy under their responsibility for the guardians, had a right to seek to be discharged from their obligation on the bond, but upon receiving this promise from the intestate, they, abstained from instituting the proceedings prescribed by the statute for that purpose. It was not necessary that they should enter into an actual stipulation for, delay or forbearance.

But we think it was not competent to the defendant to offer evidence to contradict the writing on which the action is' founded. Lawson Valentine therein acknowledges the receipt of a sum of money, and promises to apply it in a particular manner, for the benefit of the plaintiffs. Whether he had received it or not, they could not know, as the transaction was between him and Henry Valentine, but they might well presume that he had received it, and he could not be permitted to say tnat he had deceived them.

In regard to the amount of damages, the defendant contends that he is liable for no more than $210-91 ; but the question is to be determined by the contract. The promise is, to ap ply $ 749-67 towards indemnifying the plaintiffs “ from a cer [329]*329tain bond given by Henry Valentine as principal and said Drury and Wyman as sureties,” and not from loss occasioned „ by unfaithful administration on the part of Henry Valentine alone. The reference to him was merely by way of description, to designate the bond. The taking of security from Samuel Haven was not a waiver of the plaintiffs’ rights on this contract, and they are entitled to recover the whole sum named in it, with interest from the commencement of the action.

Nonsuit taken off and defendant defaulted.

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Bluebook (online)

31 Mass. 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drury-v-fay-mass-1833.