(145 N.E.) SCHELLING v. PUBLIC UTILITIES COM- Randolph Walton and W. S. Pealer, both of PER CURIAM. There is nothing involved in this case except a question of fact. From the findings of the commission we quote: Randolph Walton and W. S. Pealer, both of Columbus, J. A. Okey, of Caldwell, and Scott & Scott, of Cambridge, for plaintiff in error. C. C. Crabbe, Atty. Gen., and John W. Bricker, of Columbus, for defendant in error. PER CURIAM. All counsel in this cause concede that the only question which this case brings to this court is one of fact. From the finding of the commission we quote: "Heretofore this party first came before the commission with certain associates in the name of a so-called company, asking that a certificate be issued to them for this route. This application was withdrawn and an individual application filed by Kennedy for the certificate, which was denied, for the reason that the commission had already granted to one W. D. Thomas a certificate for the route. Appeal was taken from this decision to the Supreme Court of Ohio, where it was affirmed. The present affidavit was then filed. At the hearing, which became necessary because of the protest filed, testimony was offered tending to show some operation by the affiant over this route on or prior to April 28, 1923, but this testimony is in direct conflict with the testimony of the affiant in the former proceed "Heretofore this party made application to this commission for a certificate to operate a motor transportation company, carrying passengers over this route. That application was denied, for the reason that the commission had already granted to one W. D. Thomas a certificate for the route, and such decision appealed to the Supreme Court of Ohio, where it was affirmed. Thereupon the present affidavit was presented, and at the hearing, which became necessary because of the protest filed, there was offered some testimony that the affiant had made some trips between Caldwell and Marietta prior to April 28, 1923. Such trips, how-ing. ever, at the most were only casual, as the affiant could not have been actually operating over this route in regular service between these points on and prior to April 28, 1923, as state highway No. 8 was not open for travel along this route until long after that date. "The commission, being fully advised in the premises, therefore finds that the statements contained in said affidavit are untrue." * "It is apparent from the affiant's own statements that any operations beyond Pleasant City to Caldwell, on or prior to April 28, 1923, were purely casual, and that this affiant was not, upon or before such date, actually operating in good faith a regular service over this route. The commission, being fully advised in the premises, therefore finds that the statements contained in said affidavit are untrue." We have carefully read the record, and find that it contains evidence to support the affidavit of plaintiff in error, and also evidence inconsistent therewith; that the evidence of plaintiff in error given in this hearing is inconsistent with evidence given by him in a former hearing. While much of the evidence is inconclusive of the facts sought to be shown, some of it is The evidence outside of the testimony of the plaintiff in error is inconclusive and in sharp conflict. The commission finds the evidence of plaintiff in error in conflict with the physical facts which existed over the route. The character of the evidence is such that to arrive at the actual facts requires a determination of which witnesses were speaking the truth and which were not. The commission, with the wit-in sharp conflict, and the actual fact can only nesses before it, determined the facts against plaintiff in error, and this court from the record is not able to say that the finding is against the weight of the evidence. The finding of the commission is affirmed. MARSHALL, C. J., and ROBINSON, KENNEDY v. PUBLIC UTILITIES COM- 145 N.E.-55 be ascertained by determining which witnesses spoke the truth and which witnesses did not. The commission, with the witnesses before it, found the statements contained in the affidavit of plaintiff in error to be untrue. The record is such that, had the commission arrived at an opposite conclusion, this court probably would not have reversed such finding, and the same process of reasoning that would have prevented us from reversing a finding in favor of plaintiff in error prevents us from reversing a finding against him. The order of the commission is affirmed. BARBER v. RATHVON. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 9, 1924.) 1. Appeal and error 1068 (3, 5)—Plaintiff not harmed by instructions, unless case one for jury. If case was not for jury, plaintiff was not harmed by instructions given, or by refusal of requests. 2. Limitation of actions 197(1)-Action on alleged promise to pay when able held not barred by six-year limitation. Where promise relied on was defendant's letter promising to pay indebtedness as soon as he had means, and there was no evidence that he had been so able for six years prior to suit, nor evidence to determine whether limitation had run on lost notes given in 1892, due date thereof being speculative, cause of action was not barred by six-year limitation of G. L. c. 260, § 9. 3. Limitation of actions 145 (5)-When new promise is supported by original consideration, stated. Where remedy has been lost by limitations, or by discharge in bankruptcy, or by defense of minority, and where new promise waives legal bar existing, and establishes conditions under which recovery may be had according to its terms, then new promise is supported by orig inal consideration. 4. Limitation of actions 145 (5)-New promise held without consideration. Where right to recover was based on defendant's promise to pay lost notes as soon as he had the means, and date of maturity of lost notes was not known, and there was no forbearance to sue, due to reliance on promise or in performance of obligation to forbear, new promise was without consideration. 5. Limitation of actions 145 (5)-Mere forbearance to sue, without agreement, will not support new promise to pay. Mere forbearance, without agreement, is insufficient to support a new promise to pay. Exceptions from Superior Court, Suffolk County; Henry T. Lummus, Judge. Action of contract by John W. Barber against William R. Rathvon to recover a debt represented by certain lost notes. After finding for plaintiff by jury, verdict, under authority of G. L. c. 231, § 120, was entered for defendant, and plaintiff excepts. Exceptions overruled. S. R. Cutler, of Boston, for plaintiff. WAIT, J. In August of 1892, the defendant with two partners, all of Denver, Colo., constituting the firm of Taylor & Rathvon, were insolvent and endeavoring to make a settlement with their creditors. They owed $3,593.71 to a Boston partnership of which the plaintiff was a member. The plaintiff was visiting the defendant at Denver, and as a result of a conference held on August 9, 1892, at the defendant's house with the partners in Taylor & Rathvon, the plaintiff's firm received seven notes (six for $500 each and one for $593.71) signed by the three partners bearing interest at 8 per cent., dated at Denver, Colo., May 1, 1892, but actually executed there in September, 1892. The plaintiff now owns his partner's interest in the notes. The notes themselves have been lost. The plaintiff cannot recall the date on which they were made payable. No demand for payment had been made upon them before the date of the writ in this action, and no suit has ever been brought upon them. The plaintiff and his partners, in August of 1892. and ever since, have been citizens of Massachusetts. The defendant's partners never have been residents of Massachusetts. The defendant, except for 2 years from 1908, to 1910, was resident in Colorado from 1892 until 1918. He resided in Massachusetts before 1892, was in Massachusetts in the period 1908 to 1910, and has resided here since 1918. The plaintiff and the defendant in 1892 were close friends, and have maintained the friendship ever since. They corresponded, and in 1892, 1894, and 1896 the defendant wrote to the plaintiff letters in which, among other things, he referred to the old indebtedness. In a letter of July 16, 1894, in which the defendant referred to certain lots in Denver. which, apparently, had been transferred in some way to the plaintiff as security for the notes given in 1892, he wrote: "Now I hardly expect ever to be able to clean up my share of the old debts, though if the money ever comes to me, I will so apply it, but both my wife and I feel that we owe to you and yours more than a mere business obligation, and as I have before told you, if the means to pay ever comes to us, yours shall be the first debt lifted." The only "old debts" or "debt" referred to are the obligation of Taylor & Rathvon, and This suit is brought upon the promise conthe seven notes given in settlement of it. tained in the words quoted. The defendant admits that when the suit was brought, on able to pay a sum of money equal to that July 1, 1921, he was and now is "financially declared for in this case." At the trial in the superior court there was evidence to sustain the foregoing statement. There was no evidence of forbearance or of any agreement to forbear other than such inferences as may be drawn from the facts so stated and the letters from the defendant referred to. The judge refused to direct a verdict for the defendant, who claimed an exception. He ruled that the promise, if any, was limited by its words to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) [4] Here the right to recover is placed squarely on the new promise. We do not know that full legal liability does not still continue on the notes. The new promise rests for its consideration on either (1) the existence of the old indebtedness, or (2) forbearance to sue by the plaintiff. The cases already cited establish abundantly that the old indebtedness is not a sufficient consideration in these circumstances. It could not support at the same time both the obligations entered into in 1892 and the new promise made in 1896; distinct contracts, arising at different times. the defendant's share, one third, of the orig-|v. Jewett, 3 Metc. 439; Little v. Blunt, 9 inal liability; that the only consideration Pick. 488. for the alleged promise was the antecedent liability; that no new or additional consideration was necessary to make the promise enforceable; and that no interest could be recovered other than six per cent. per annum from the date of the writ. To these instructions the plaintiff excepted, as well as to the judge's refusal to give certain instructions which the plaintiff requested in regard to forbearance as a consideration. The jury found for the plaintiff for one-third of the $3,593.71, with interest from the date of the writ. Thereafter in accord with leave reserved under G. L. c. 231, § 120, the judge, upon motion, ordered entry to be made of verdict for the defendant. The case is here on the plaintiff's exceptions. [1] If the plaintiff was not entitled to go to the jury, he is not harmed by the instructions actually given to the jury or by the refusal to give the instructions requested. We consider only the exception to the order directing a verdict for the defendant. [5] It is the established law in this commonwealth that mere forbearance without agreement is not enough to support a new promise to pay, Mecorney v. Stanley, 8 Cush. 85; Manter v. Churchill, 127 Mass. 31; Way v. Dunham, 166 Mass. 263, 44 N. E. 220; and that neither a promise to do, nor the doing of merely what the debtor already is bound to do is a sufficient consideration for such an agreement, Warren v. Hodge, 121 Mass. 106; Smith v. Bartholomew, 1 Metc. 276, 35 Am. Dec. 365; Jennings v. Chase, 10 Allen, 526; Wilson v. Powers, 130 Mass. 127. Both plaintiff and defendant testified, yet there was no evidence of any forbearance to sue due to reliance on the promise, or in performance of any obligation to forbear, or in acceptance of any offer to pay if forbearance were given. A failure to begin proceedings to enforce an obligation does not justify as matter of law the inference of an implied promise to forbear nor of a promise to pay. There was no consideration for the new promise. We are not led to a different conclusion by the authorities cited by the plaintiff. In Lonsdale v. Brown, 15 Fed. Cas. 855, No. 8,494, the suit was on the original undertaking, and there was consideration for the for [2, 3] The cause of action if any, upon which the suit was brought was not barred by the statute of limitations, G. L. c. 260, § 9. No action could accrue upon that promise until the defendant was able financially to meet a judgment thereon; Custy v. Donlan, 159 Mass. 245, 34 N. E. 360, 38 Am. St. Rep. 419; Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320; Tebo v. Robinson, 100 N. Y. 27, 2 N. E. 383; and there was no sufficient evidence to justify a ruling that he had been so able for six years prior to July 1, 1921. The evidence was not sufficient to determine whether the statute of limitations had run upon the notes given in 1892; for there was nothing but speculation to determine when they became due. This is not a case of a suit on an obligation where the remedy has been lost through the operation of the statute of limitations, or of a discharge in bankruptcy or of a defense of mi-bearance; in Tebo v. Robinson, the court did nority, where a new promise is held to waive the legal bar existing and to establish the conditions under which a recovery may be had according to the terms of the new promise. In such cases the new promise is treated as supported by the original consideration. Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320; Wald v. Arnold, 168 Mass. 134, 46 N. E. 419; Custy v. Donlan, 159 Mass. 245, 34 N. E. 360, 38 Am. St. Rep. 419; Krebs v. Olmstead, 137 Mass. 504; Chace v. Trafford, 116 Mass. 529, 17 Am. Rep. 171; Wyman v. Fabens, 111 Mass. 77; United Society v. Winkley, 7 Gray, 460; Foster v. Shaw, 2 Gray, 148, 153; Way v. Sperry, 6 Cush. 238, 52 Am. Dec. 779; Ilsley not consider the question of consideration; with Breed v. Hillhouse, 7 Conn. 523, we are unable to agree; while the cases cited from our own reports, Train v. Gold, 5 Pick. 380; Drury v. Fay, 14 Pick. 326; Boyd v. Freize, 5 Gray, 553; Walker v. Sherman, 11 Metc. 172; Burr v. Wilcox, 13 Allen, 269; Wald v. Arnold, 168 Mass. 134, 46 N. E. 419; Gill v. Gibson, 225 Mass. 226, 114 N. E. 198, and Little v. Blunt, 9 Pick. 488, are either clearly distinguishable on their facts from the case before us, or are in substantial accord with the law as herein stated. The judge was right in directing the verdict for the defend ant. Exceptions overruled. BROWDY v. BROWDY et al. (Supreme Judicial Court of Massachusetts. Hampden. Jan. 9, 1925.) I. Trusts 79-Resulting trust not established in property taken in others' names for benefit of one of those paying consideration. Where it was not known what part of price husband contributed to purchase of land by himself and wife, title to which was taken in names of their children, and it was not shown that he paid the entire consideration, resulting trust cannot be established for his benefit alone. Neither Fannie nor Lillian furnished any part of the consideration for the conveyance, all of the consideration being supplied by the plaintiff and the defendant Rosa. Taxes, insurance and expenses for repairs since the time of the original purchase have been paid by them. time of the purchase of the real estate, it It was found that, at the to Fannie and Lillian; that it was purchased was not intended that a gift should be made by Max and Rosa for a home. There was no evidence introduced to show what proportion each contributed. The plaintiff contends that a trust resulted to himself and Rosa, or that a trust resulted to himself of a onehalf interest in the real estate. The suit in equity is brought by the husband as the sole plaintiff. The question does not arise whether Max and Rosa Browdy, as joint plaintiffs, could claim a resulting trust in the land, it having been purchased with their funds and the title taken in the name of the daughters. [1-3] A resulting trust cannot be established for the benefit of the plaintiff alone. 86-No presumption that husband It is not known what part of the purchase buying property, contributed 2. Trusts 79-Trust does not result to party paying part of consideration, unless distinct interest is paid for. A trust does not result to one paying part of the consideration, where title is taken in name of another, unless a specific and distinct interest in land was paid for; general contribution of money to purchase price not being sufficient. 3. Trusts and wife, equally. Where husband and wife purchased property, title to which was taken in names of their children, there was no presumption that they contributed equally. price he contributed. It is not shown that he paid the entire consideration. It is well settled that a trust does not result to a person paying a part of the consideration, where the title is taken in the name of another, unless it appears that a specific and a distinct Appeal from Superior Court, Hampden interest in the land was paid for. A general County; Burns, Judge. Bill in equity by Max Browdy against Rosa Browdy and others to establish trust in certain real estate alleged to have been purchased by plaintiff and defendant Rosa Browdy, title to which was taken in their children. Decree for said defendant, dismissing bill, and plaintiff appeals. Affirmed. Simpson, Clason & Callahan, of Springfield, for plaintiff. W. G. Brownson, of Springfield, for defendant. contribution of money to the purchase price is not sufficient. McGowan v. McGowan, 14 "To establish a resulting trust the husband must prove that he furnished himself the enpart thereof, for which it was intended he tire consideration or a specific and definite should receive a determinate and fixed fraction of the whole estate conveyed." CARROLL, J. The plaintiff is the husband of the defendant Rosa Browdy. The defendants Fannie and Lillian are their children. In 1910 the plaintiff and his wife purchased a tract of real estate and caused the title to the same to be placed in the name of Fannie and Lillian Browdy. In 1912, at the request of the plaintiff and his wife, Lillian, without receiving any consideration therefor, Decree for the defendant, dismissing the conveyed her interest to Fannie Browdy. bill, affirmed with costs. See Pickens v. Wood, 57 W. Va. 480, 50 S. E. 818. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) not available in the absence of evidence of IRWIN'S BANK et al. v. FLETCHER SAV- what, if any, of the notes, collected by the reINGS & TRUST CO. et al. (No. 24017.) (Supreme Court of Indiana. Dec. 18, 1924.) 1. Receivers 76-Take property impressed with rights of creditors. Receiver of insolvent, appointed for winding up its affairs, takes the property impressed with the then legal or equitable rights of creditors. 2. Receivers 76-Preference may be good between parties and not against other creditors. Despite rule that a receiver, appointed to wind up an insolvent's affairs, takes the property impressed with the then legal or equitable "rights of creditors," a preference may be good between the parties, but not as against other creditors, unless perfected as required by law. 3. Receivers 76-Rights between creditors judicially determined as of date of receiver's appointment. Controversy between creditors of insolvent, for whom receiver has been appointed to wind up its affairs, affecting their rights on distribution, is determined judicially as of date of receiver's appointment, and as affected, if at all, by such transfer of the property. 4. Receivers 200-No right to make deduction from money received from collection of notes discounted for insolvent. As against party which actually discounted for a company notes given the company for sale of machines, company's receiver has no right to deduct, from proceeds of the notes, commissions to schools and discounts on notes paid before maturity, paid and allowed by the receiver; nothing in the contract between such party and company authorizing it. 5. Receivers 200-Claimant entitled to payment from other funds for deduction improperly made by receiver from collection on notes discounted by claimant. ceiver, were within the terms of the contract. Contracts between manufacturer and indorsers of its notes, creating a special fund to be controlled by the two, for carrying on a contract for manufacturing war munitions for the United States and securing the indorsers, held not to give materialmen an equitable lien suthe hands of the receiver of the manufacturing perior to that of the indorsers on the fund in company. 8. Contracts 187(1)-To benefit third person not specifically mentioned, must evidence distinct intention. That a contract may have the effect of benefiting a third person not specifically mentioned, it must clearly evidence a distinct intention to do so. 9. Contracts 160-Preliminary recitals can. not control clearly expressed stipulations. While preliminary recitals in a contract may be persuasive in determining the parties' intention when the language expressing their contractual relations is ambiguous, uncertain, and indefinite, they cannot control clearly expressed stipulations. 10. Contracts 160-Effect of recitals limited to parties. The effect of recitals in a contract is limited to its parties. 11. Assignments 32-Interest of party in fund created by contract assignable without consent of other parties. One of the parties to contract, creating a special fund for certain purposes, may, without consent of the other parties, assign his interest therein, subject to the prior rights of the others therein. 12. Chattel mortgages 124 Special fund held not subject as after-acquired property. Where receiver of company improperly de- A special fund consisting of money borrowducted, from proceeds of notes actually dis-ed by a manufacturer to carry on a special war counted by claimant for the company, commissions and discounts which the receiver had paid and allowed, money collected by receiver on other notes not discounted is subject to payment to claimant of the improper deduction. 6. Receivers 77(1)-Party held to have an equitable lien on unassigned notes of a certain description only held by insolvent. A party which contracted with a company to discount, from time to time, notes of a certain specifically described class, given for machines manufactured and sold, and which, after discovery that the company had appropriated money collected on notes so discounted, orally agreed that such appropriation should be treated as an advancement on all such notes assigned or unassigned, and should be repaid from the proceeds of all subsequent notes "covered by the terms of the contract," whether assigned or unassigned, held to have an enforceable equitable lien on all such unassigned notes passing into the hands of the company's receiver, but munitions manufacturing contract and all money to be received from the munitions contract, created and set aside for specific uses by the contract of the manufacturer and the indorsers on his notes for the loans, held not within the after-acquired property clause of prior mortgage; it being insufficient to pay all the debts on account of the loans and the munitions contract, so that there was no surplus in it for the mortgagor or its receiver. 13. Chattel mortgages 18, 124-Receivers 77 (2)-After-acquired property clause in mortgage of insolvent held valid and gives lien; after-acquired property clause held to give equitable lien on notes for machines made and sold by mortgagor. The after-acquired property clause in recorded mortgage of all property of one engaged in manufacturing machines and selling them is valid in absence of any fraud, operates by way of a present contract to give a lien, and entitles mortgagee to an equitable lien on the proceeds For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |