Colt v. Root

A, a member of a manufacturing corporation, and so in certain events liable for tne debts of the corporation, in consideration that B, the holder of a promissory note of the corporation, would deposit the note with a third person, until A should take up another note made by B to C, and with the proceeds thereof pay the note first mentioned, promised B to save him harmless from his said note to C.—It was held that such promise need not be in writing by the statute of frauds, as a promise to pay the debt of another. Where the want of an averment of notice in a declaration is cured by a verdict.

The declaration was in a plea of the case, for that the said Root, in consideration that the plaintiff would deposit with one Merrick a certain promissory note, which he held against the Housatonic Manufacturing Company, whereof the said Root was a member, and for the debts whereof he was liable, which note was payable to one Weller or order, and by him endorsed to the plaintiff, whereon was due to the plaintiff 160 dollars, and that the plaintiff would suffer said note to remain with Merrick until Root should take up from one Janes another promissory note made by the plaintiff to Janes, and with the last-mentioned note, so to be taken up, pay the note first mentioned;—promised the plaintiff to save him harmless from his note to Janes, and all costs arising thereon. And the plaintiff, in consideration of the premises, did deposit with Merrick the first-mentioned note, to remain with him according to Roofs wish; but the said Root has not saved the plaintiff harmless according to his promise; but the plaintiff has been sued by Janes, and subjected to great costs, viz., 50 dollars, and an execution has been issued against him for 181 dollars, on which a carding-machine, the property of the plaintiff, of the value of 1000 dollars, has been seized and sold, &c. f * 230 ] *The cause was tried upon non assumpsit pleaded, before Wilde, J., at the last May term in this county. It appeared in evidence, that, in July, 1818, the plaintiff held a note against the Housatonic Manufacturing Company, to which corporation the defendant belonged; that the plaintiff was about going out of the commonwealth, and was desirous to obtain the money on this note, to enable him to discharge one he had given to Janes; that it was agreed by the plaintiff, that he would not sue the note he held against the company, but would leave it in the hands of a third person, until he should return, which was not until the February following; that, in consideration of this, the defendant promised the plaintiff, that, if Janes should sue him upon the note he held against the plaintiff, he, the defendant, would indemnify the plaintiff from all cost and harm ; that the plaintiff did leave the note against the company with the person agreed upon, until the February following, when he took it away, and sued it in his own name, and at the last May term recovered a judgment thereon against the company; that the plaintiff was sued by Janes immediately after the above arrangement, and the defendant, as well as the plaintiff, had notice of the suit; that a judgment was recovered by Janes upon the note, and an execution issued thereon, the costs of the suit, including the execution, being 8 dollars, 75 cents; that, in February, 1819, after the execution was issued, and before it was levied, the plaintiff returned and took the note against the corporation out of the hands of the third person, with whom it was deposited, and then knew that the execution against him had issued; that in May, 1819, the execution was levied upon a carding-machine, belonging to the plaintiff, he being then absent from the commonwealth; that notice of the levy was given to the defendant; but he neglecting to raise the money to satisfy the execution, the machine was sold for much less than its value; that, notice of this being given to the plaintiff by his agent, he came from * Riga, [ * 231 ] in the state of New York, a distance of 300 miles, to redeem this property, and was compelled to pay 50 dollars, in addition to the sum for which it was sold at auction, to have it restored to him; and that the cost of levying the execution was 8 dollars, 35 cents, which sum, with the costs of court, and the 50 dollars, was paid by the plaintiff in June, 1819. The plaintiff contended that he was entitled to recover, as damages in this action, the above three sums, and also the expenses of his journey from Riga, with a compensation for his time. The defendant contended that the plaintiff was not entitled to recover any thing, the contract declared on being void, because not in writing; and the contract proved being different from that stated in the declaration, and he having objected to the proof of the contract by parole. He also insisted that the contract was void fat want of consideration; but that, if the plaintiff was entitled to re cover any thing, it was only the costs of court and of the execution. The judge overruled the objection to the evidence, and told the jury that there was a sufficient consideration for the promise; and he instructed them to find their verdict for the costs of court and of the execution, and the 50 dollars paid by the plaintiff to redeem his property, with interest from the time the money was paid; and that they might also inquire what sum the plaintiff would be entitled to recover for the time and expense of his journey from Riga, in case the Court should be of opinion that any damage could be recovered by the plaintiff, on that account, in this suit. The jury found a verdict for the plaintiff for the sum of seventy four dollars and eighty-one cents; and that the time and expense of the journey from Riga were worth thirty dollars. If the evidence was incompetent or insufficient to support the action, the verdict was to be set aside, and a new [ * 232 ] * trial had; if the rule of damages, as prescribed by the judge, was wrong, the verdict was to be so altered in its amount, as to conform to the opinion of the whole Court.