Nichols v. Bucknam

117 Mass. 488, 1875 Mass. LEXIS 274

Opinion

Ames, J.

It appears upon Qthis report that the plaintiff, in order to save his property from being sold on legal process, has been compelled to pay a debt which was really due from the defendant. Under such circumstances, the law implies a request on the defendant’s part, and a promise to repay; and the plaintiff has the same right of action as if he had paid the money at the defendant’s express request. Exall v. Partridge, 8 T. R. 308. 1 Smith Lead. Cas. (5th Am. ed.) 70 a, 73. Hale v. Huse, 10 Gray, 99.

But the costs incurred in defending against the claim stand on other grounds. The judge in the court below has held that they should be disallowed; his decision in matter of fact is conclusive, and there is nothing in the bill of exceptions to show that he erred in matter of law in so holding.

We do not find in the bill of exceptions any reason for setting aside the ruling of the court as to the third count of the declaration. It is impossible to say, on the facts reported, that the money paid by the plaintiff was specifically appropriated to the payment of William E. Bucknam’s claim, or that the defendant incurred any obligation so to apply it. It was found by the judge to have been a general payment on account, and we cannot Eay as a matter of law that there was any error in so finding.

The result is that the exceptions of both parties are

Overruled.