Boothby v. Bennett

Symonds, J. The declaration alleges that in February, 1873, the defendant requested the plaintiff to loan to one A. Gr. O’Brion the sum of $1000, upon the promissory note of O’Brion, with the deposit of United States bonds as collateral security; that the plaintiff in pursuance of this request, and upon the agreement of the defendant to effect the loan in that way, gave the $1000 [120] to the defendant, to be by him in behalf of the plaintiff "loaned to said O’Brion upon the terms and security aforesaid; ” and that the defendant broke his agreement, to the injury of the plaintiff, by lending the money to O’Brion upon his note without the collateral security which had been promised. These are the substantial averments of the declaration. What is alleged of the acceptance of certain notes, as collateral, in place of the bonds, and of such acceptance being void of effect by reason of the fraud of the defendant; what is set forth in regard to a return of the notes to the defendant, upon the discovery of the fraud, in 1876, the demand on him for payment of the $1000 loaned with interest or the.deposit of the United States bonds, and the renewal at that date of the defendant’s original promise; these parts of the declaration simply show the facts attending the alleged breach of the contract of February, 1873. They do not present a distinct ground of liability. There is no consideration averred for a new and independent promise in 1876. The right to recover upon proof of what took place in 1876, alone, does not appear to have been claimed at the trial, and is not urged in argument here, under the declaration in its present form. The plaintiff relies upon the defendant’s agreement of February, 1873, as at first stated, to procure United States bonds as collateral security for the loan, and his breach of contract in lending the money without obtaining them. The rest of the declaration-simply negatives the valid acceptance by the plaintiff of other security instead of the bonds, and states the circumstances under which the defendant, without new consideration, orally renewed the promise in 1876. The averment of the breach of contract is distinct in its reference to that of 1873. The agreement declared upon is an oral one, and having been made more than six years before the date of the writ, September 1, 1879, the statute of limitations is a bar, unless there is something in the case to defeat the operation of the general rule. An acknowledgment of liability, or new promise to perform the contract, cannot have this effect, "unless the acknowledgment or promise is an express one, in writing, signed by the party chargeable thereby. ” R. S., c. 81, § 93. [121] It is the claim of the plaintiff — and this claim was sustained by the pro forma ruling at the trial — that the defendant’s letter of July 6, 1876, was a sufficient written acknowledgment of the original contract to keep it in force under this section of the statute. A thorough examination of the case leaves no doubt that this ruling was erroneous. The issue between the parties at the trial was whether the defendant made the agreement alleged — to be personally responsible for the deposit of the bonds — so that he was in fault in letting the money go without- securing them; or whether, as he asserted, his whole relation to the loan was that of an agent, acting for the plaintiff in good faith and under his direction. We fail to find in the letter of July 6, standing alone or in its proper connection in the correspondence, anything which is not as consistent with the theory of the defence on this point as with that of the plaintiff. The defendant on March 18, 1876, had procured for the plaintiff two new notes from O’Brion for the loan and the interest on it, with railroad bonds of less value than was then represented, as collateral security for them; had notified the plaintiff by letter of that fact on March 24, inquiring if he should give O’Brion the thirty days delay which he requested on the smaller note, and if the security was satisfactory; the the plaintiff had replied by letter on March 29, that he did not like the security, did not feel safe, wanted something there was no doubt about, and desired the defendant " to look right after it,” as Boston creditors were troubling O’Brion; on June 19, following, the plaintiff had written again to inquire about it, saying, "I am anxious to know it is all right;” and to this the defendant replied by the letter of July 6, "I am expecting the interest on said note to be paid to me within ten days. In regard to the principal of $1000, I have those bonds which I named to you. I understand they are worth a small premium, I think about two per cent, aboye par. I am authorized to let you have the bonds at their market value, if you want them; or I will dispose of them to other parties and get you the money. Please inform me by return mail whether you would like the [122] bonds or the money. ” Thereupon the plaintiff wrote his letter of July 13, saying, "I prefer the money; I don’t want the bonds any way. ” In the proposition of the defendant to dispose of the bonds which he had obtained on March 18, as security for this loan, and get the money for the plaintiff, nor in anything else which this letter of July 6 contains, can we see any recognition whatever, or acknowledgment, by the defendant of a personal liability on his part to furnish government bonds as the security, arising out of a contract to do so made in February, 1873. If it may be said that the letter is consistent with such a sense of obligation on his part, it is equally so with the theory that he, Avas acting simply under the responsibilities of an agent. The letter is one that might have been written, Avord for word, precisely as it is, if there had been no transaction between the defendant and the plaintiff about this loan till March, 1876, when the defendant procured the new notes for the plaintiff, and the railroad bonds to secure them. The offer is only to get the plaintiff the market value of the bonds. It is impossible to regard this letter as the acknowledgment of a long-precedent liability, to which it does not refer, directly or indirectly, when there is nothing in it that requires the existence of such an obligation as an explanation, but, on the contrary, its whole contents are as consistent Avith the non-existence of the agreement alleged, as with any other theory. Exceptions sustained. Appleton, C. J., Walton, Barroavs, Daneorth and Virgin, JJ., concurred.