John Perry vs. Samuel Swasey, 12 Cush. 36

Shaw, C. J. 1. The first question is, whether the witness, Mrs. Harvey, was a competent witness. The facts in the case are these: She made a note to Perry, the plaintiff, and he indorsed it to Bradbury, as collateral security for his debt to said Bradbury. Of course, Perry had still an interest in it. After-wards Bradbury returned it to him, for his own use, the purpose of the pledge having been accomplished. Swasey, the defendant, promised Mrs. Harvey to pay it, and put his name on it in pursuance of that promise; but that promise and indorsement are not the ground of this action, but are important as evidence.

Afterwards Mrs. Harvey settled with Swasey, and gave him a discharge from a debt due her for his board, acknowledged to be for an amount equal to the payment of the note, and Swasey engaged to pay the note. He did make two payments on it. It seems to us that Mrs. Harvey was a competent witness. She had put money into the hands of the defendant to pay her debt with; and he had received from her a full consideration for doing so. If she should be ever called on to pay the note, she would have her remedy over against the defendant, Swasey. Oo her interest was equally balanced. 2.

Then the general question is, whether, upon the facts, the plaintiff can maintain this action. As it was first opened, it seemed to be the case of a first indorser suing a second; but a fuller examination, and especially the production of the note and the receipt, presents the case in a different aspect. Mrs. Harvey engaged the defendant to pay her debt, and put money into his hands for that purpose; he promised to pay it.

This promise was made known to the plaintiff, who again became the holder of the note, and the defendant made two payments upon it in the hands of the agent of Bradbury, the pledgee of the note. This raised a good implied promise to pay the plaintiff; and the money received by the defendant of Mrs. Harvey, for the payment of her debt to the plaintiff, was a consideration for his promise to pay the holder of her note; and the law creates the privity, and enables the party who is to have the benefit of the promise to treat it as a consideration moving from him. Dutton v. Poole, 1 Vent. 318; Carnegie v.

Morrison, 2 Met. 381; Fitch v. Chandler, 4 Cush. 254; Brewer v. Dyer, 7 Cush. 337. 3. We are strongly inclined to the opinion that the plaintiff is entitled to recover on the money counts, as for money had and received. Hall v. Marston, 17 Mass. 575. Mrs. Harvey placed money in the hands of the defendant for the use of the plaintiff, and the authority from her to pay it to the plaintiff" was never revoked. The discharge, of a debt due in money is, for many purposes, equivalent to a payment in cash.

One who has collected the debt of another, by taking a note in his own name, is liable as for money had and received. Floyd v. Day, 3 Mass. 403. So where he collects such debt by levying an execution on the debtor’s land in his own name. Randall v. Rich, 11 Mass. 494. Exceptions overruled.