
    Edward Tuckerman & others, Trustees vs. John S. Sleeper & another.
    If a creditor applies to his debtor for payment, and he, by a written or verbal order, requests another to pay, who, whether bound to do so or not, does pay, it is a payment of the debt, and discharges the claim of the creditor.
    This was an action of covenant brought by the plaintiffs, as trustees under the will of the late Edward Tuckerman, to recover of the defendants the sum of sixty-one dollars and sixty-six cents, being the taxes assessed by the city of Boston for the year 1848, upon certain premises on Washington street, occupied by the defendants.
    At the trial, before Bigelow, J., in the court of common pleas, the plaintiffs, to prove their case, offered in evidence a lease from themselves to the defendants of the premises above mentioned, for the term of three years from the 1st of May, 1845, whereby the defendants covenanted that they would, during that term, and for such further time as they should hold the premises, pay unto the plaintiffs, their successors, and assigns, a certain yearly rent, and all taxes and assessments whatsoever, which might be payable for or in respect of the premises during the term, or during such further time as the defendants might hold the premises. It appeared that the defendants had occupied the premises under the lease, and paid the rent from May 1, 1845, until August 1, 1848, having continued in possession of the premises for three months aftei the expiration of the term, by agreement with the plaintiffs. It also appeared that the plaintiffs, prior to the commencement of this suit, had paid to the city the sum of sixty-one dollars and sixty-six cents, for taxes assessed on the premises for the year 1848.
    The judge ruled that, under the covenant relating to taxes, the defendants were liable to pay the taxes assessed on the premises for the year 1848.
    The defendants then proved that the plaintiffs made a lease of the premises to one Thomas F. Norris, for five years from the 1st of August, 1848, containing a similar covenant relating to the payment of taxes; and that Norris began to occupy the premises on the 1st of August, 1848.
    Noras, being called as a witness by the defendants, testified that, about the 1st of October, 1848, a bill for two months’ rent of the premises, and for sixty-one dollars and sixty-six cents for taxes, was presented to him by the plaintiffs, and that he paid the same, including the charge for taxes, to William Sohier, Esquire, who acted as agent for the plaintiffs; and that, on or about February 24, 1849, the defendants paid to Norris a bill containing the following items: “ For rent of rooms from August 1,1848, to October 1,1848, $58.33; for taxes on rent from May 1 to August 1, 1848, $15.41; for taxes on rent from August 1,1848, to October 1,1848, $4.50.” On cross-examination, Norris testified that when the above bill was presented to him by Mr. Sohier, he objected to paying the taxes therein charged, on the ground that he was not, by the terms of the lease, liable to pay the taxes for the year 1848, but that these objections were overruled by Mr. Sohier, by whom he was told he was liable to pay the taxes for the year 1848 under his lease, and that, on reference to his lease, he came to the conclusion that he was liable for the taxes for the year 1848, and he accordingly paid the same as the taxes for the year 1848. He further testified that Mr. Sohier, at the time he paid the taxes, said something about his deriving some advantages at the end of the term, in being released from paying the taxes for that year, but he concluded it was doubtful whether he should realize any such advantages.
    The plaintiffs then called William Sohier, Esquire, who testified that he called on the defendants for the tax for the year 1848, and they refused to pay, and, at their suggestion, he called on Norris for the payment of the tax ; that he made out the bill, charging taxes sixty-one dollars and sixty-six cents, and presented it to Norris ; that Norris asked if he was liable for the taxes; that he told Norris he thought he was not liable in law; that Norris said he was willing to pay taxes for the number of years he occupied, and preferred paying the first year’s taxes to those of the last year of his term; that, thereupon, he agreed with Norris to take the sum of sixty-one dollars and sixty-six cents, for the taxes for the year 1853 ; and that Norris paid that sum, and he received it for the taxes for the year 1853.
    It appeared in evidence that Sohier acted in the matter throughout as the agent of the plaintiffs, and that he was, in connection with his copartner, Mr. Lowell, the attorney of record in this case, and that the writ was made at their office. This was the substance of all the testimony in the case. The credit due to the testimony of Mr. Norris on the one hand, and Mr. Sohier on the other, was fully argued on both sides, and was submitted to the jury.
    The plaintiffs asked the judge to rule, that a payment made under such circumstances would not constitute a bar to the plaintiffs’ claim; but the judge instructed the jury that, if they were satisfied, by the evidence, the burden of proof being on the defendants, that the plaintiffs had demanded and received of Norris payment in full for the taxes on the premises for the year 1848 and not for 1853, and that the defendants had knowledge of this payment and assented to or ratified the same, then the plaintiffs could not recover in this action.
    The jury found a verdict for the defendants, and the plaintiffs alleged exceptions.
    
      C. W. Boring, for the plaintiffs,
    cited Rev. Sts. c. 7, §§ 7, 8; Hcmkshaw v. Rawlings, 1 Strange, 23; Young v. Ruddle, 2 Salkeld, 627; Merriam v. Bacon, 5 Met. 95; Graham on New Trials, 271.
    
      
      C. T. Russell, for the defendants,
    cited Itev. Sts. c. 7, §§ 7, 19-24; Train v. Collins, 2 Pick. 145; Thompson v. Lothrop, 21 Pick. 336; Thorndike v. Boston, 1 Met. 242; Frothingham v. Haley, 3 Mass. 68; Lent v. Padelford, 10 Mass. 230, 236, Odióme v. Maxcy, 13 Mass. 178; Same v. Same, 15 Mass. 39, Story on Agency, §§ 239, 243-247; and, as to what constitutes ratification, §§ 253, 256; Foster v. Bates, 12 M. & W. 226; Hull v. Pickersgill, 1 Brod. & Bing. 282.
    This case was argued and decided at a former term.
   By the Couiit.

The judge having ruled that the defendants were liable on their covenants, for the tax of 1848, which was in favor of the plaintiffs, die only question was, whether it had been paid by the defendants, on which question the burden of proof was on them. The bill was made out to the defendants and presented to diem, and they referred the plaintiffs to Norris. They then made out the bill to Norris, and applied to him, and, after some doubt and hesitation, he paid it. That, in point of face, it was the tax of 1848 which was thus paid by Norris, was found by the jury, and must be taken to be true. The judge instructed the jury, that if, upon such reference by the defendants to Norris, he paid it, with the knowledge and assent of the defendants, it was a discharge of the plaintiffs’ demand. This, we think, was clearly right. If a creditor applies to his debtor for payment, and he, by a written or verbal order, requests another to pay it, whether bound to do so or not, and he does pay it, it is a payment of the debt, and discharges the claim of the creditor.

Exceptions overruled.  