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21 Me. 545

Rowe v. Whittier

Supreme Judicial Court of Maine

Decided June 15, 1842

Supreme Judicial Court of Maine · decided 1842-06-15

<p>Where a person is liable to pay a debt, and promises to pay the same amount to a creditor of him to whom the debt was due, such promise is not within tlie statute of frauds, and need not be in writing; but if the promisor had not before been liable to pay such slim, bis promise would not have been obligatory, under that statute, without a memorandum thereof in writing.</p> <p>Where an action had been commenced by It. a counsellor and attorney at law, in favor of P. against W., and during the pendency of the suit, the creditor and debtor agreed to settle the demand in a certain manner, “provided W. would pay the expenses;” andón application of P. and W. to the attorney, he handed them his bill, charging to P. in one item the taxable costs, and in another, “ commissions on amount secured by attachment;” and u W. took the bill, and looked at it, and told R. that he would pay it before he went out of town;” and thereupon the demand was settled in the manner proposed, without including any costs or scep&nscs; afterwards P. informed R. of the settlement, “when W. told R, that he would call and settle it before lie went out of town, and R. said that would be satisfactory;” and afterwards W. paid R. the amount of the taxable costs : — It was held, that an action by R, against W. for the balance of the hill, being the amount of the item of charge for commissions, could not be maintained.</p>

Cited by 2 later decisions — most recently January 1885

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1842-06-15

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¶1The opinion of the Court was by

Wht'tman C. J.

¶2— The suit of the plaintiff is on an account annexed to his writ. It is for the taxable bill of costs in an action commenced by him, in favor of Willis Patten & al. against the defendant; and for “ commissions on amount secured by attachment” in the same cause. The defendant settled the demand of Patten fy al. before judgment; and at the same time, having the plaintiff’s bill presented to him as here exhibited, verbally promised the plaintiff to pay the amount of it to him; and has paid him the amount of the taxable costs ; but now refuses to pay the amount charged for commissions; alleging that item to be a charge for which he was not, in any event, liable; and, if due from any one, it was from the plaintiffs in that suit; and that his promise to pay it was made in ignorance of his legal rights; and without consideration, and therefore void.

¶3These positions, on the pari of the defendant, seem to us to be well grounded in the law. This item for commissions could not have been recovered by Patten & al. of the defendant; *550and therefore was not his debt. If it had been, his promise would have been available to the. plaintiff; and good without a memorandum in writing. Dearborn v. Parks, 5 Greenl. 81. But, not being so, there was no consideration for the promise. If the claim was a legal one against Patten & al. it does not appear that they were discharged from it, in consideration of •the promise made by the defendant; and if it had so appeared, the defendant, not being otherwise liable, his promise would not have been obligatory, under the statute of frauds, without a memorandum in writing. Leonard v. Vredenburgh, 8 Johns. R. 29. Farley v. Cleaveland, 4 Cowen, 432.

¶4The exceptions are therefore sustained, and a new trial granted.

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