Fraser v. Backus

Campbell, C. J.

Plaintiff sued defendant on an agreement whereby he promised to pay the balance due on a judgment, in consideration of an extension of time.

Judgment was rendered against defendant and one A. S. Backus, in 1874, and judgment obtained for $1,184.04, and $24.25 costs. On this an execution was issued,'and returned unsatisfied. A second execution was issued, and returned April 12, 1877. This was returned satisfied.

In May, 1881, a motion was made to set aside this return as erroneous in fact, because the judgment had not been fully paid. An order was made on this motion setting it aside, and directing its amendment according to the fact. Immediately after this order plaintiff’s attorney communicated with defendant’s attorneys, and, at their request, met defendant, and it was agreed that if they would wait two weeks, until his son arrived, he would pay $200 down, and the balance at that time. He paid the '$200, but did not pay the remainder. The sheriff did not, in fact, amend the return.

The court, upon the trial of this cause, ordered a verdict for defendant. We think,he should have ordered one for plaintiff. He could not be deprived of his debt by the misconduct or omission of the sheriff, and when this promise was made by defendant it was a promise to pay a- just debt, which both parties thought, and probably correctly, could be enforced by execution. At any rate, both acted on that assumption with equal means of knowledge, and there was a sufficient consideration for the promise. The contract, if valid, could not be avoided by the subsequent action or inaction of anybody.

The judgment must be reversed, with costs of both courts. *543 As the record stands, we must go through the form of ordering a new trial.

The other Justices concurred.