Marston v. Bigelow

Morton, C. J. The defendant offered to prove, as a defence to the note sued on, that on January 29, 1879, which was before the note matured, his father, Samuel Bigelow, conveyed to the plaintiff’s intestate a piece of land; that a part of the consideration, namely, seventeen hundred and seventy dollars, was paid, and indorsed upon this note; and that in consideration thereof the plaintiff’s intestate agreed never to molest or trouble the defendant by suit for the balance due upon the note. This is not an offer to prove a satisfaction and discharge of the note. Indeed, such a defence is not open under the pleadings; and the evidence shows that a year afterwards the defendant made a payment on account of the balance due on the note, thus recognizing it as an existing obligation. It was merely an offer to prove a collateral promise never to sue the note, made to a stranger who is not a party to the note or to this suit. Such a promise, made upon good consideration to the defendant himself, would operate to defeat the suit. Foster v. Purdy, 5 Met. 442. The question is whether the defendant can avail himself of such a promise, made to a stranger, as a defence to the note. Unless he could bring a suit upon such contract, he cannot use it as a defence. Different rules upon this subject have been adopted and acted upon by different courts. But in this Commonwealth, as is stated in Exchange Bank v. Rice, 107 Mass. 37, “ The gen — 52 — eral rule of law is, that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract, and consequently that a promise made by one pei’son to another, for the benefit of a third person who is a stranger to the consideration, will not support an action by the latter. And the recent decisions in this Commonwealth and in England have tended to uphold the rule and to narrow the exceptions to it.” The subject is discussed and the authorities cited in Met-calf on Contracts, 205 et seq. The defendant contends that, by a recognized exception to this rule, a son may sue upon a promise made for his benefit to his father. This was formerly held in several English cases, but it is not now so held in England. The only case in this court which supports the defendant’s contention is Felton v. Dickinson, 10 Mass. 287. In that case the declaration contained counts in indebitatus assumpsit for two hundred dollars, in consideration of work and labor performed for the defendant by the plaintiff at the defendant’s request, and a quantum meruit for the same work and labor. The evidence at the trial was, that the father of the plaintiff, when the latter was fourteen years of age, placed him in the service of the defendant, upon an agreement that the plaintiff was to remain in that service until he should be of age, and that the defendant was to support him during that time, and to pay him two hundred dollars when he was of age. Upon the peculiar facts of the case, we think the court rightly decided that the son could maintain the action. The agreement of the father operated as an emancipation of the son, and entitled him to receive the wages of his labor. Corey v. Corey, 19 Pick. 29. The consideration of the wages he was to receive when he became of age was his labor; and it may well be held, as matter of law, that the promise to the father to pay the son a stipulated sum was made to the father acting on behalf of and as the agent of the son, and thus a promise to him. The agreement was not an independent agreement, in which the son had no part or interest. From the nature of the contract he was a privy and party to it. He had an interest in it, and the father and the defendant could not, without his assent, rescind the agreement just before he became of age, and thus defeat his rights under it. The court, in its opinion, puts the decision upon the — 53 — broad ground, that, “ when a promise is made to one, for the benefit of another, he for whose benefit it is made may bring an action for the breach.” But, as we have seen, this is not the law as established by the later decisions. Exchange Bank v. Rice, 107 Mass. 37, and cases cited. While the case of Felton v. Dickinson was rightly decided upon its peculiar circumstances, we think it cannot be fairly regarded as establishing a general rule that a son may sue upon a promise made for his benefit to his father. The nearness of the relationship may be evidence that the promise to the father was made to him acting in behalf of, and as the agent of, the son, and therefore was a promise to the son; but when it appears that the promise was not made to the son, and that the consideration did not move from him, we can see no reason why the nearness of the relationship should change the general rule of law, that a man cannot sue upon a contract to which he is not a party or privy. In the case at bar there was no offer to prove a promise to the defendant not to sue; the promise is set out in the pleadings and in the offer of proof as a promise to the father upon a consideration moving wholly from him. As to such agreement, there was no privity of contract between the plaintiff’s intestate and the defendant. The only contract is between the plaintiff and Samuel Bigelow, and they may at any time revoke and annul it. The only party entitled to sue the plaintiff upon that contract, either at law or in equity, is Samuel Bigelow. The case falls within the general rule of law, that one who is not a party to a contract cannot sue upon it. As the defendant could not enforce this agreement, which he offered to prove, either in law or equity, he cannot avail himself of it as a defence in this suit, and the Superior Court rightly rejected the evidence offered by him to prove such contract. There was evidence proper to be submitted to the jury, that the defendant received the notice which was mailed to him, and the prayer for a ruling that there' was no evidence of the delivery of the notice was properly refused. The second ruling requested by the defendant was properly refused. The deposit of a letter in the post-office, addressed to a party at his place of business, is prima facie evidence that he received it in the ordi — 54 — nary course of the mails. This is founded upon the presumption that the public officers will do their duty. Huntley v. Whittier, 105 Mass. 391. So, if a party has changed his place of business, and has informed the post-office authorities of it, there is a presumption or inference that the letter- has been delivered at the new address. The deposit of the letter in the post-office, accompanied by evidence that the authorities knew of the change, furnishes competent evidence that the party has received the letter. In either case there is a disputable presumption or inference of fact, the weight of which is for the jury. In the case at bar, there was other evidence tending to show the receipt by the defendant of the letter addressed to him by the plaintiff’s intestate, and the court properly left it to the jury to determine, upon all the evidence, whether the defendant had received the letter, giving such weight to the presumption or inference as they thought it entitled to. It is plain that the omission of the words “ with interest,” in the note sued on, was a mere clerical error, and the instruction on this subject was sufficiently favorable to the defendant. Judgment on the verdict.