Frauds, Statute of. Practice, Civil, Ordering verdict. An oral promise of the owner of an equity of redemption in real estate, which is subject to a mortgage made by his grantor, to pay the mortgage note within a certain time less than a year to its holder, who is the assignee of the mortgage, in consideration of such holder's forbearance from foreclosing the mortgage, is not a promise to answer for the debt, default or misdoings of another within the meaning of R.L.c. 74, § 1, cl. 2.
Where at the trial of an action of contract a special finding of the jury has established the facts alleged by the plaintiff, which make the defendant liable, and the amount of damages is not in dispute, it is proper for the presiding judge to order a verdict for the plaintiff under instructions which fix its amount.
BRALEY, J.
The evidence warranted the special findings of the jury, that the defendant agreed to pay the overdue mortgage note if the plaintiff would not foreclose, and that in reliance upon the promise foreclosure proceedings were not instituted. The title to the equity of redemption stood in the defendant's name, but the note and mortgage having been given by his grantor, the principal defense is, that, if the promise was collateral, no sufficient memorandum in writing was ever given, or if original, the agreement was not to be performed within one year from its date, and the action, therefore, is barred by R.L.c. 74, § 1, cl. 2, 5. The last contention, if it were not disposed of by the very terms of the agreement, is settled by the third special finding of the jury, that the period of performance was understood to be less than the statutory time. Roberts v. Rockbottom Co. 7 Met. 46. If a special promise to answer for the debt of another must be evidenced by a memorandum or note in writing signed by the party to be charged, even if the consideration expressed therein may be shown by extrinsic evidence, the testimony is plenary, that the defendant's controlling motive was to prevent a foreclosure for his own benefit, or, as he testified, to protect the interests of the corporation with which he was connected, although neither could have been compelled by suit to pay the note of the mortgagor. Ames v. Foster, 106 Mass. 400. Carleton v. Floyd, Rounds Co. 192 Mass. 204. R.L.c. 74, § 2. Bogigian v. Booklovers Library, 193 Mass. 444. The defendant's promise, as the jury specially found, was to pay a debt for which the property could have been held, and, the plaintiffs' forbearance to press the right of foreclosure having been a sufficient consideration to support the promise, the ruling that the contract was independent of the statute was right. Mackin v. Dwyer, 205 Mass. 472, 475, and cases cited. Fish v. Thomas, 5 Gray, 45. Fears v. Story, 131 Mass. 47. Stratton v. Hill, 134 Mass. 27, 30. Paul v. Wilbur, 189 Mass. 48, 52.
The defendant's evidence having tended to prove that he acted or intended to act in a representative capacity, he contends that this question should have been submitted to the jury, and that the judge erred in directing a general verdict for the plaintiffs upon the special findings. It is clear from the record that the request was not made until after the return of the special findings under the first two questions. But, the defendant not having called to his attention the question of agency, the judge evidently understood when the testimony closed, and so stated to the jury, that the only matter of law the defendant intended to raise was that which we have discussed. If the defendant desired to present this question he should have asked for a ruling before the judge instructed the jury. It came too late as a matter of right after the special findings had been submitted and answered. Keohane, petitioner, 179 Mass. 69. But the general verdict simultaneously returned was at once set aside by the judge on his own motion without any objection being made by the parties, as no instructions had been given in reference to the amount which the plaintiffs were entitled to recover. A general verdict, however, was necessary at some stage of the proceedings, and the defendant then for the first time asked the judge to rule, that upon all the evidence in the case there was nothing for the jury and that a verdict should be ordered for the defendant, and that, if the defendant promised as the jury had found, a verdict for the plaintiffs could not be ordered. The judge properly could have refused, as we have said, to entertain this request. But he did not take this course. His final reply after a long colloquy with the counsel for the defendant, that his requests were refused, and "your exceptions noted" saved the point now pressed. The jury then were instructed further to find the time when performance was due from the defendant, and also as to the amount of their verdict, which the judge ordered for the plaintiffs.
But the exceptions, although open, cannot be sustained. The ruling that the agreement, if either entirely oral or evidenced by the letters which passed between the parties, was an original and not a collateral contract, left the question of fact to be determined whether the defendant's promise was unconditional and absolute, as the plaintiffs contended, or whether, as the defendant testified, it was conditional upon a sale of the property which he was trying to arrange but which he did not complete because, as he notified the plaintiffs, his efforts to sell had not been successful. The request that a verdict be ordered for the defendant was rightly refused, and under instructions to which no exceptions were taken to the omission to refer to any question of agency, the jury were correctly instructed, "that an agreement of some sort was made there is no question. What the agreement was is the issue here." By their special findings the jury decided that the defendant's promise was his own unqualified undertaking to pay the debt as the plaintiffs alleged. It followed that no further question of fact as to the defendant's liability remained to be proved, and, the amount not having been in dispute, the judge properly ordered a verdict for the plaintiffs. Raymond v. Crown Eagle Mills, 2 Met. 319. Winsor v. Griggs, 5 Cush. 210. Welch v. Goodwin, 123 Mass. 71. Doucette v. Baldwin, 194 Mass. 131, 135.
Exceptions overruled.