Barker v. Thayer

De Courcy, J. The plaintiff seeks to recover from the defendant for plumbing work. It is undisputed that $165 of the bill is for bathroom fixtures that were supplied in 1903 under an express contract with the defendant’s husband, and were installed in the [14] tenement hired and occupied by him. The entire account in suit was treated as one bill and was charged on the books to the husband, Clarence Thayer, who was a businessman and considered financially sound by the plaintiff. The plaintiff, in his testimony, admitted that he looked to Clarence Thayer for payment, and never spoke to the defendant about the bill until some months after her husband’s death. It appears that the house in which the work was done was then owned by Mrs. Howe, the defendant’s mother, whose family occupied the lower tenement; and that the defendant has since acquired an interest in the property by the will of her mother, who died in May, 1905. But she had no interest, legal or equitable, in the property when the plaintiff did the work for which he seeks to hold her answerable. Clearly the defendant was not liable under the original contract. O’Conner v. Hurley, 147 Mass. 145. And the plaintiff cannot avail himself of the doctrine of an implied promise to pay, such as may be inferred where a husband as his wife’s agent procures valuable materials and services for her real estate. Cases like Reid v. Miller, 205 Mass. 80, cited by the plaintiff have no application under the facts shown here. There was some evidence that after her husband’s death the defendant said she would pay the plaintiff’s bill. But as she was not legally liable for the original debt, such subsequent promise to pay it cannot be enforced against her. As she contends, it was without consideration, and, further, being an oral promise to pay the debt of another, it falls within the defense of the statute of frauds. Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306. R. L. c. 74. O’Connell v. Mount Holyolce College, 174 Mass. 511. The entry must be Exceptions overruled.