Aldrich v. Carpenter

Allen, J.

At the trial in the Superior Court, both parties agreed that the law of Rhode Island should govern the case, and the trial proceeded on that assumption. The evidence produced to show the law of Rhode Island consisted of the statute of frauds of that State, and of two decisions by the Supreme Court, viz. Urquhart v. Brayton, 12 R. I. 169, and Wood v. Moriarty, 15 R. I. 518. From these decisions it seems that, upon the testimony, the jury would have been warranted in finding a verdict for the plaintiff. The plaintiff introduced evidence tending to show that the defendant promised Mrs. Walker to pay the note the amount of which is now sued for, and that this promise was repeated by the defendant to the plaintiff himself. On his cross-examination he testified, “ Mr. Wilson [who was the defendant’s agent] told me that Mr. and Mrs. Carpenter both sent word that they would take care of the last note when it became due.”

There was no evidence that at the time this alleged promise by the defendant was made any consideration therefor proceeded directly from the plaintiff to the defendant. All that the plaintiff did was done afterwards, and he made no promise to discharge the mortgages which he held, or to discharge his attachment. It seems to be implied, though it is not stated as a fact, that the defendant paid the notes which were secured by mortgages, and if so he would be entitled to have the mortgages discharged. As to the note the amount of which is now sued for, the defendant denied that he ever promised to pay it, and upon this question the evidence was conflicting; but the plaintiff expressly testified that he had no conversation with the defendant, or anybody representing him, in relation to the attachment, and that he simply ordered it discharged because he supposed that the defendant was going to pay the last note. This negatives any consideration proceeding at that time from the plaintiff for the defendant’s promise. But according to the law of Rhode Island, no such contemporaneous consideration was necessary. The effect of bringing the action against the defendant upon his promise, according to the decisions referred to, if we understand them correctly, implied a release of the original debtor, and the consideration thus arose when the action was brought, and in such a case the statute of frauds is not applicable. Indeed, the decisions referred to go so far as to *170 show that the plaintiff might recover by virtue of the defendant’s oral promise to Mrs. Walker, even though the defendant had made no promise directly to the plaintiff.

In Massachusetts the law is otherwise. Borden v. Boardman, 157 Mass. 410 . Saunders v. Saunders, 154 Mass. 337 . Marston v. Bigelow, 150 Mass. 45 . Furbish v. Goodnow, 98 Mass. 296, 298 . Nelson v. Boynton, 3 Met. 396, 399 . But under the law of Rhode Island it seems to us that there was a case for the jury; and the defendant virtually concedes this in his brief.

The defendant, however, contends that it was a mistake to try the case according to the law of Rhode Island, and that the defence of the statute of frauds relates to the remedy, that the case should have been tried and submitted to the jury according to the rules of law which are established in Massachusetts, and that the agreement that the law of Rhode Island should govern the case was inadvertent. We are unable to take this view of the case. A defendant may waive the defence arising under the statute of frauds, and is held to have done so unless he sets it up in his answer. Middlesex Co. v. Osgood, 4 Gray, 447 . Townsend v. Hargraves, 118 Mass. 325 . Ames v. Jackson, 115 Mass. 508 . Cahill v. Bigelow, 18 Pick. 369 . In this case, the defendant in his answer relied on the statutes of frauds of both States, and at the trial he put in evidence the Rhode Island statute, and by the agreement in effect waived the Massachusetts statute. The plaintiff and the defendant both lived in Rhode Island, and all the negotiations between them were had in that State. But for their agreement, a question might have arisen whether the case should be tried according to the law of Massachusetts or of Rhode Island; a question which perhaps cannot be considered as free from doubt. We do not enter upon that question at this time. The course pursued by the presiding justice was in conformity to the agreement of the parties. No exception lies to a ruling which is. assented to or asked for. Nor can we say that any substantial injustice was done by the result. Upon the main fact in controversy, the jury’s verdict establishes that the defendant made a promise either to the plaintiff or to Mrs. Walker to pay to the plaintiff the amount in suit. There was no legal error in overruling the defendant’s motion for a new trial, and the exceptions must be Overruled.