Whiting v. Sullivan

The law will not imply an assumpsit where there is an express promise; no? against the express declaration of the party, made at the time of the supposed implied assumpsit.

Assumpsit for keeping the defendant’s horse. Upon the general issue pleaded, the action was tried before Parker, J., from whose report it appears that the defendant had purchased the horse of the plaintiff, after a conversation between them, in which the defendant enumerated the qualities he wanted in a horse, and the plaintiff declared his horse to possess such qualities; that after trying the horse, and being dissatisfied with him, the defendant sent the horse to the plaintiff, with a letter, in which he expressly * declared that he returned the horse to the plaintiff, [*108] because he had been cheated in the bargain; that the plaintiff, after reading the letter, or looking at it long enough to read it, said to the defendant’s messenger, “ So, Mr. Sullivan has sent me his horse to keep that the messenger replied, “ No, he has returned your horse to you, and will have nothing more to do with him that a servant of the plaintiff’s then took the horse and carried him to the stable, the plaintiff standing by and not forbidding; that the saddle and bridle were brought back to the defendant; that the horse remained about a year with the plaintiff; and for his keeping, during that time, this action is brought. The judge directed the jury that they might presume, from the manner in which the horse was sent back, the declaration made to the plaintiff, and his receiving the horse, connected with the conversation which took place at the time of the purchase, that the defendant had a right, after trying the horse, to return him, if he did not answer the description given of him by the plaintiff; in which case they would find a verdict for the defendant; but if they believed the purchase to have been absolute, without any condition, or without any right reserved to the defendant to return the horse, they might find their verdict for the plaintiff. But that, after the manner in which the horse was received by the plaintiff, they would consider whether he ought not to have sent the horse back to the defendant, or at least have notified him that he should charge him with the keeping, before he could entitle himself to keep him at the defendant’s expense. The jury returned a verdict for the plaintiff, contrary, as the judge observed, to the presumptions arising from the facts proved in the case. The defendant objected to that part of the judge’s direction, in which he instructed the jury that if they should be satisfied that the property of the horse was in the defendant at the time fat which the plaintiff demands compensation for his keep-[*109] ing, they ought to find a verdict for the * plaintiff; although, in fact, he kept the horse without any request from the defendant, and even against his express refusal to be chargeable.