Frauds, Statute of. Contract, Consideration. Practice, Civil, Exceptions. The part of the statute of frauds which relates to an oral promise to pay the debt of another, contained in R.L.c. 74, § 1, cl. 2, has no application to a novation by which a new oral promise of another person is accepted in place of the promise of the original debtor, who thereby is released from liability for the debt.
In an action to recover for services rendered to the father of the defendant in taking care of the rooms occupied by him and in washing and mending his clothes, for which it was alleged that the defendant promised to pay, there was evidence that after a part of the alleged services had been performed by the plaintiff the defendant authorized the rendering of all further services on his account in such a way as to make the debt his from the beginning, and there was testimony that the defendant said that, if the plaintiff would continue to perform the services, he would pay the debt already contracted and that the plaintiff might look to him for its payment instead of to his father, that the plaintiff accordingly did look to him for payment, discharging the father, and that the father on the next day or soon after indicated his approval of this arrangement. Held, that there was evidence warranting a verdict for the plaintiff for compensation for the services rendered both after and before the defendant's alleged promise.
The exclusion of evidence, which tends merely to contradict a fact conceded by the party who offered it, affords no ground for exception.
KNOWLTON, C.J.
The defendant's requests for rulings and the refusal to give them, with the exceptions taken to this refusal, present the principal questions in this case. They are founded on that part of the statute of frauds which relates to an oral promise to pay the debt of another. None of the instructions requested could properly be given, for each of them called for a ruling equivalent to the direction of a verdict for the defendant, when in fact there was ample evidence to warrant a finding of a novation, whereby the defendant's father was released from his liability upon a debt and the defendant was substituted as the promisor to pay it.
As to the part of the plaintiff's claim which accrued after the defendant's alleged promise, the plaintiff's evidence was that the defendant authorized the services to be rendered on his account, in such a way as to make the debt his from the beginning. What was said, according to the plaintiff's witnesses, gave sufficient authority to charge the services to the defendant as they were rendered.
As to the debt contracted before the defendant's agreement, there was testimony that he said he would pay it, and that the plaintiff might look to him for it instead of his father; that she did accordingly look to him for it, discharging the father, and that the father, the next day or soon after, indicated his approval of the arrangement, thus making every one interested a party to it. There was no error in the refusal, or in the instruction to which exception was taken. See Furbish v. Goodnow, 98 Mass. 296; Caswell v. Fellows, 110 Mass. 52; Trudeau v. Poutre, 165 Mass. 81, 86.
The only other question arises upon the exclusion of testimony of a declaration made by the defendant's father. The testimony had no connection with any matter of fact in the case, except the question whether there was such a debt from the defendant's father as the plaintiff contended, before the defendant's contract was made. The declaration of this deceased person, under the R.L.c. 175, § 66, if found by the court to be made in good faith, had some tendency to prove that the defendant's father never owed the plaintiff for the care of his rooms, and washing and mending his clothes, as that service was included in the price paid for his board. But the defendant's bill of exceptions states as a fact that the father told the plaintiff he would pay her one dollar and a half a week, or six dollars a month, to care for his room and wash and mend his clothes, and that under these terms she did the work and he failed to pay her, although he several times promised to pay. It was a sufficient reason for excluding the testimony that it had no tendency to prove anything except a contradiction of a fact that is now conceded by the defendant, and presumably was admitted at the trial.
Exceptions overruled.