Smith v. Pond

77 Mass. 234

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1858
• Status: Published

Opinion

Merrick, J.

The declaration alleges, and the jury have found, that in consideration of the delivery by the plaintiff to the defendant of a deed, conveying to the Ladies’ Collegiate Institute a tract of land on Union Hill in Worcester, he promised the plaintiff to pay him the sum of fifty dollars, and also to pay for him to the said institute the further sum of one hundred dollars which he had before that time subscribed and agreed to pay to that corporation. Whenever for an adequate consideration a person expressly promises to pay the debt of another and to save him harmless therefrom, the failure of the latter to perform his agreement by the payment of the debt when it becomes due, gives to the former an immediate right of action, on which he will be entitled to recover the whole amount of the debt, although he has not then paid any part of it. Gilbert v. Wiman, 1 Comst. 550. Thomas v. Allen, 1 Hill N. Y. 145. Churchill v. Hunt, 3 Denio, 321. 2 Parsons on Con. 462. Upon that principle the ruling of the presiding judge must be sustained. Under the contract between the parties, which the verdict shows was fully proved, the defendant became indebted to the plaintiff in the sum of one hundred and fifty dollars. If he had paid fifty dollars to the plaintiff and one hundred dollars to said institute, as he might and ought to have done, those payments would have fully discharged him from all liability. As he neglected or refused to make the payments according to his promise, the omission constituted a breach of contract, for which it is obvious that the damages to be recovered ought justly to be no less than the full amount of the sum which he had agreed to pay.

Exceptions overruled.