Homes v. Dana

12 Mass. 190

Opinion

Curia.

As to the first objection taken by the counsel for the defendant, that the contract read in evidence was not admissible, because it was between other parties, it cannot prevail. The action is not founded upon the contract; but this was introduced collaterally, to show the circumstances under which the money was paid by the intestate to the use of the defendant. It is, in this respect, like a note or bond, paid by one not a party, at the request of the obligor or promissor. In such a case, there can be no doubt the instrument would be proper evidence, although between other parties.

Footnotes

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Nor is the objection maintained, that this was a contract by the defendant merely to loan money, and, therefore, that no action would lie, except for damages, for the non-performance.

The true ground of the action is, that, by reason of the contract, Larkin was led to confide in the engagement of the defendant, so far as to advance his own money for him ; and the defendant, and the other subscribers, having made Larkin the trustee, to receive and appropriate the money, for objects of importance to them, were bound in equity and good conscience to restore it. The only question which could arise in this case was, whether Larkin was induced to advance his money by the subscription, and by the confidence placed by him in the subscribers. The jury having so found, the verdict is unquestionably right.†

Judgment according to the verdict.

The difficulty really was, that Larkin advanced the money without any request or authority from the defendant and he ought not to have been made debtor without his consent.

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Fisher vs Ellis, 3 Pick. 332.— Trustees of the Church in Hanson vs. Stetson, 2 Pick. 506. — Bryant vs. Goodnow, 5 Pick. 928.— Salem, Mill Dam Corporation, vs. Ropes, 6 Pick. 26.— Chester Glass Company vs. Dewy. 16 Mass. Rep. 94. — Trustees of Farmington Academy vs. Allen, 14 Mass. Rep. 172. — Amherst Academy vs. Cowls, 6 Pick. 427. Sed vide Holmes vs. Higgins, 1 B. & Cr. 74 — Boutelle vs. Cowden, 9 Mass. Rep. 254. — Bridgewater Academy vs. Gilbert, 2 Pick. 579.