Opinion
Decided June 7, 1938.
The provision of the statute of frauds requiring that a promise to pay the debt of another shall be in writing has no application unless such other person is indebted to the plaintiff who seeks to recover on the defendant's verbal promise. A trustee who assumes an obligation which by the terms of the trust is unauthorized becomes personally obligated.
ASSUMPSIT, to recover for supplies and services furnished by the plaintiffs in connection with a funeral. Trial by a master and verdict for the plaintiffs.
The decedent was the life beneficiary under a testamentary trust of which the defendant was the sole trustee. The plaintiffs were employed by distant relatives of the decedent to conduct the funeral and provide the necessary supplies therefor and these relatives told the plaintiffs that the defendant as trustee would arrange to pay the cost thereof. The defendant came to the plaintiffs' place of business while the relatives were still there and before they had finished making arrangements for the funeral, and the plaintiffs contend that he then agreed to pay their bill in the amount previously determined between them and the relatives. The defendant admits his presence at the plaintiffs' establishment at that time but denies having made any promise of payment.
The defendant's bill of exceptions was allowed by Connor, J.
John Scammon and George R. Scammon (Mr. George R. Scammon orally), for the plaintiffs.
Arthur L. Churchill, pro se, and Arthur E. Sewall and Thomas L. Cleaton (Mr. Churchill and Mr. Cleaton orally), for the defendant.
The defendant's reliance upon the statute of frauds, (P.L., c. 327 s. 2), is misplaced. The reason for this is that there is no evidence that the defendant promised to pay the debt of any other person. There is no evidence of any promise on the part of the decedent's surviving relatives to pay for the funeral nor is there any evidence that before her death the decedent made arrangements for or agreed to pay the cost of her own funeral. The only evidence is that all such arrangements were made after the death of the decedent.
The master has found, and the sufficiency of the evidence to support his findings was not challenged at the trial and so cannot be challenged here (Bacon v. Thompson, 87 N.H. 270, 271, and cases cited), that the defendant agreed to pay for the funeral as trustee and that the terms of his trust did not permit him to do so. This agreement to pay was an original undertaking by the defendant, (Janvrin v. Powers, 79 N.H. 44), which obligates him personally in spite of the fact that he assumed the obligation in his fiduciary capacity. Hardy v. Bank, 61 N.H. 34, 39 and cases cited; Am. Law Inst., Restatement, Trusts, s. 201 Comment a.
The case of Jones Brewing Co. v. Flaherty, 80 N.H. 571 is distinguishable from the case at bar. In that case there was evidence from which it could be found that the defendant in making the agreement had excluded his personal liability. There is no such evidence in the instant case. See Am. Law Inst., Restatement, Trusts, ss. 261, 262, 263, Subsection (1) Comment a.
Judgment for the plaintiffs.