Fisher v. Ellis

20 Mass. 321

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1825
• Status: Published

Opinion

Parker C. J.

delivered the opinion ol the Court. We are not able to perceive any sufficient reason against the plaintiff’s recovering in tlie present action. The promise is made to the third parish in Dedham, through their treasurer, and it is expressly made to the successors in that office. The parish is a legally existing body, having a right to hold funds, and to be a debtor or creditor. The present plaintiff is the lawful successor of him to whom the promise was immediately made. There is then no objection to the character or capacity of the plaintiff. A promise made to A, for the benefit of B, may be sued by A or B. Com. Dig. Action &c. upon Assumpsit, E.1

We think it cannot be objected that there was no consideration for this promise. The defendant’s testator acknowledged a consideration, to wit, that he had borrowed and received the sum of money which he promised to pay. Taking the words of the writing on which the action is brought, it would appear that he had received 75 dollars from the treasurer of the parish on loan, and he would not be allowed to contradict this admission.¹ By the form of the transaction it seems to have been intended to be understood, that the testator had actually paid his subscription into the treasury, and then taken it out again on loan. Surely if he had paid the money, he could not recover it back again ; neither can he, having by his own acknowledgment borrowed it, refuse to repay it in violation of his promise. It is the same thing as if the sum borrowed had been money paid by any other subscriber. It is unlike the cases cited by the defendant’s counsel, for in those, in addition to the objection of want of parties, there was thought to be no mutuality ; but here, taking the promisor’s own acknowledgment, he had received a full consideration for his promise.

Nor is there a defect of remedy, in case the trustees should not apply the proceeds of the fund according to the conditions on which it was created ; for without doubt, on a bill in equity filed by the parish, or perhaps by any of the individual subscribers interested at the time in the fund, they would be compelled to execute their trust; and if the parish itself should refuse or neglect to cause the fund to be appropriated according to the terms of the subscription, the subscribers or their representatives would have a right to recover the sums they may have advanced.

Judgment affirmed.

1 See Levant v. Parks, 1 Fairfield, 441; 1 Chitty on Pl. (6th Amer ed.) 5 Potter v. Yale College, 8 Connect. R. 60.

1 See Hill v. Buckminster, 5 Pick. 391; Barker v. Prentiss, 6 Mass. R. 434; People v. Howell, 4 Johns. R. 303; Pearson v. Pearson, 7 Johns. R. 26; Schoonmaker v. Roosa, 17 Johns. R. 301; Holliday v. Atkinson, 8 Dowl. and Ryl. 163; S. C. 5 Barn. & Cressw. 501; 2 Stark. Evid. (5th Amer. ed.) 169, 170; Bowers v. Hurd, 10 Mass. R. (Rand’s ed.) 430, n. (a.); Phillips Limerick Academy v. Davis, 11 Mass. R. (Rand’s ed.) 119, n. (a.); Williams College v. Danforth, 12 Pick. 541; Reid v. Furnival, 1 Crompt. & Mees. 538.

Although a promissory note is expressed to be for value received, or contains any other acknowledgment of consideration, parol evidence is admissible, between the original parties, to prove that there was in fact no consideration. Mills v. Wyman, 3 Pick. 207; Amherst Academy v. Cowls, 6 Pick. 427 Hill v. Buckminster, 5 Pick. 391.