Art. 20. I. CH. 9. of frauds as the promise to pay another debt; for D's liability on the corporation's note to B, such as that liability was, created a sufficient consideration to make D's said promise his own, and not his promise to pay the debt of the corporation in the sense of paying another's debt. In fact it was to raise money in a manner specified and to pay C a debt B the plt. owed him. Farley v. § 36. One Moon, Nov. 22, 1815, gave the plt., Farley, a note for $100 and interest payable the next June. Jan. 1, 439. Error. 1817, Cleveland, the deft., in consideration of fifteen tons of hay (value $250) sold and delivered by Moon to him, at his instance, promised to pay Moon's note to Farley. Held, this promise was not within the statute of frauds of New York. 1 R. L. 78. s. 11. The principle stated in this case is the true one, to wit, where a promise to pay the debt of a third person arises out of some new consideration or benefit to the promisor, or harm to the promisee, moving to the promisor either from the promisee or the original debtor, such promise is not within said statute, though the original debt still subsists and remains unaffected by the new agreement. Savage, C. J. examined numerous English and American cases. a transcript of the statute 29 Ch. 2. cases there, and cases ch. 11. a. 14. Myers v. 18 Id. 12. ART. 22. 11 Wheat. kins v. Hart, ex'r. The New York act is See ch. 1. a. 53. s. 4. and Also this 20th article. § 2. Con. Indebitatus assumpsit, in the Circuit Court in Ohio, for work and labour, care and diligence, by the plt. done, &c., as agent and attorney, in exploring, showing, surveying, 237-258, Per- and selling the lands of the deft's. testator; also in the searching of records, investigating titles and paying taxes, &c. Other money counts; and the plt. filed also a bill of particulars.' Held: 1. Where there is a special agreement, open and subsisting, at the time the cause of action arises, a general indebitatus assumpsit cannot be maintained. 2. But if the agreement has been wholly performed, or if its further execution has been prevented by the act of the deft., or by the consent of both parties; or, if the contract has been wholly performed, as to any one distinct subject included in it; the plt. may recover upon a general indebitatus assumpsit. 3. A settled account is only prima facie evidence of its correctness, at law or in equity; it may be impeached by proof of fraud, or omission, or mistake, and if it be confined to particular items of account, concludes nothing as to other items not stated in it. The principles of this case need not be questioned. 18 Johns. R. If the plt. count on a special agreement, and add a general 451, Robertson count for goods sold and delivered, to this he cannot resort if v. Lynch. the goods were in fact sold under the special agreement, and on which on a proper count the plt. might recover; and where the special agreement subsists in full force the plt. cannot recover on the money counts, but the remedy is on the contract. 10 Johns. R. 205, Wood v. Edwards; 12 Johns. 27; 14 do. 326, this is the principle. Also same principle, Champlin v. Butler, 18 Johns. R. 169; so 13 do. 15. Jewell and others v. Schroeppel, 4 Cowen, 564-567, confirms the principles of this article, the acts of the parties raised a new case not within the sealed contract. 7. Con. In the following instance the parties made a new case, &c. The plt. declared the deft. was indebted to him in account, and in consideration thereof and that the plt. would accept the labour of the deft. as a plumber and glazier, at reasonable prices to the extent of the debt, the deft. promised to do the work. Counts for money had and received, &c. It was proved the plt. by deeds had assigned certain premises to the deft. for a sum therein named. The deeds stated that sum to have been well and truly paid, and released the deft. therefrom. Parol evidence was given to show, that in fact part of the purchase money had not been paid, but that it was agreed by parol between the parties when the deed was executed, that part of the purchase money should be retained by the deft., and that he should do the work for the plt. to that amount. Held, that if this evidence was admissible, still it did not support the declaration 2. That assuming the legal effect of the agreement to be, that the entire consideration money had been paid, and that part was returned in consideration of the deft's. promising to do the work, the parol evidence would not contradict the deeds, and would be admissible; but that inasmuch as the original debt was extinguished by the release in the deeds, and no new debt was created but merely an obligation to do work arising out of a special new contract, that ought to have been declared upon. Plt. nonsuited, for he was estopped by his deeds, for in them he had said the money was truly paid to him as purchase money. The new special contract was in writing but not sealed, though the court spoke of it as a parol contract. judges thought the proof of it consistent with the deeds, one not. Here was an express contract by deeds, and, in fact, as a part of the transaction, at the same time the parties made a new special contract in writing not sealed, as to the work the deft. promised to do. This is a common case, as before stated, for the parties who made an express contract, and in their acts as to it, to slide into another contract quite different, expressed or implied, and in proving this, the principle an express contract excludes an implied one, is not affected. 1 Barn. & Cres. 704 -710, Baker v. Dewey. A new contract by parol was substituted to a deed and valid. 14 Johns. R. 330; 19 do. 205. Two $13. Con. Where the deft. in his action departs from the special contract and recovers on the general counts, the plt, afterwards I. CH. 9. Con. I. CH. 9. may adopt the same course; here both give up the special contract: this they may do. The plt. may sue on the implied promise or the special contract, if it contain no more than the law implies. 1 Pick. R. 57, 58; p. 118, 121. ART. 2. v. Tuttle. CHAPTER X. ACTION OF ASSUMPSIT. AGISTMENT. § 8. Con. Certiorari to a justices court. Tuttle brought assumpsit against Eastman for depasturing and keeping on hay 1 Cowen, 248- the deft's. cattle on land in the possession of Tuttle, the plt., at 249, Eastman the deft's. request; the pasturing, keeping, and request were proved as laid; the deft., Eastman, offered to prove that the title of the land on which the plt. lived and performed the services, was at the time in the deft. This was overruled, and verdict. Judgment for the plt. Judgment affirmed. ART. 2. Clarkson v. CHAPTER XI. ASSUMPSIT. AGREEMENT WRITTEN, HOW REQUIRED OR NOT. 1. Con. Assumpsit for the deft's. refusal to receive and pay for three hundred barrels of flour sold to him by the plt. Held, on a cash sale of goods, the vendee is not entitled to have Cowen, 84-86. possession of them till he pays for them. Relied on the said case of Langfort v. Tiler's admr., and Sands v. Taylor, 5 Johns. R. 410-11. Same concurrent promises, 6 Cowen, 110-118, Chapman & al. v. Lathrop. But if to pay on delivery of the goods, and so the delivery and payment are concurrent acts, yet if the vendor deliver them without payment, the property passes and the condition is waived. Aliter, if obtained by fraud. Many cases cited and the reporter's notes added. 6 And 6 Cowen, 250-254, Rapelye and Smith, survivors of Lawrence, v. Mackie and others, assumpsit for goods sold and delivered and goods bargained and sold. August 21, 1822, the plts. sold sixtysix bales of cotton to the defts. marked G. G. & Co. As evidence of the sale, there was a bill of parcels delivered pro forma; charge thus sixtysix bales, say 19,800 lbs. $12 per hundred, $2378, one per cent. off.' Defts. paid $18,000 at the time. The plts'. cotton was in three stores at Brooklyn; one kept by A, there sixtynine bales-mark G. G. & Co.; one kept by B, and one by C: in C's thirty bales, same mark. Soon after the thirty bales were burnt. Defts. demanded sixtysix bales: refused. Weight not exactly ascertained. Held, Art. 2. the loss by fire was the plts'. ; that there had been no delivery I. CH. 11. of the cotton, and the thirty bales were not identified in the contract and it might have been satisfied by other thirty bales. If the goods are to be weighed, &c. there is no delivery or change of property, though part of the price be paid; and if part be delivered, the other part not yet ascertained will not pass. It is enough it appears in the case something more is to be done, between buyer and seller, previous to delivery. Defts. could not have insisted on having the thirty bales in C's keeping if not burnt. Court cited 15 John. 349; 6 East, 614; 11 East, 210; 12 East, 614; 13 East, 522; 2 M. & S. 397; 4 Campb. 237. 1. Con. Same principle in Maryland, 4 Har. & Mc H. 421, ART. 4. 422, Newman v. Morris, decided on the statute of frauds, 29 Con. Ch. 2. See Rondeau v. Wyatt, sect. 12. This 3 Pick. R. 83-95, Cabot & al. v. Haskins & al. clause applies to a promise by one to pay money to another as well as to mutual promises. 3. Con. If an executor promise to pay the debt of the 4 Pick. 97testator, and he has given bond to the judge, &c. to pay the 100. testator's debts and legacies, this case is not within the statute of frauds, for the bond is an admission of assets. 1. Con. The giving further time to perform a contract is ART. 5. A Con. no waiver of any of its stipulations. 15 Johns. R. 200. deed is not affected by a parol agreement. Id. Con. $ 7. Con. Part performance of a parol agreement relating ART. 9. to land does not take the case out of the act, so as to sustain an action at law for damages for the breach of the contract; but ! Pick. R. assumpsit lies for the expenses incurred in such part perform- 328, 332. ance. Was a parol lease of a messuage for five years, rent $350 a year, tenant to make stores, &c.; did make them, &c. Equity in this case would have enforced the contract. Parol agreements may be valid by referring to prior written Pages 476–481 ones, notwithstanding the statute of frauds. No writing is necessary where the contingency may happen 1 W. Bl. 353. within a year. Holt, 326; 1 P. Wms. 620. A memorandum in writing of a contract for the sale of lands ART. 13. is not a sufficient memorandum within the statute of frauds, un- Con. less it some way shews who are the two parties to the contract. 1 N. H. Rep. 157-161. 8. The master of an apprentice is bound to pay for medi- ART. 1. cal attendance on the apprentice, from the very nature of the Con. I. CH. 12. relation between master and apprentice, and the father of the Art. 1. apprentice is only bound, when the services have been rendered Con. at his request; otherwise as to hired servants, the employer is not bound to pay for medical attendance. See ch. 47. a. 3. s. 10; 1 Strange, 99; 1 Ves. 83. 4 Rand. 423-427. ART. 1. CHAPTER XIII. ACTION OF ASSUMPSIT. ARBITRATIONS AND AWARDS. 3. An award cannot be set aside in 1. For errors apparent on the face of it. 3 Rand. 22-36, arbitrators; or some palpable mistake. Head v. Muer, &c. 4 Rand. 95103. 2 Jacob & W. 5 Serg. & R. 51, Large v. Passmore. ART. 2. 3 Barn. & law or equity except, 2. Misconduct in the 3. Or fraud in one of the parties. 4. Nor in equity for objections available at law, omitted by the party without any excuse. 5. Equity cannot revise a decision of a law court. See art. 15. s. 21. and ch. 34. a. 2. s. 8, principle seems different. Equity has jurisdiction to decree specific execution of an award, where the remedy at law is inadequate. 2. Where parties submit a question of law alone to arbitration, the award is binding, though contrary to law. 3. Awards are to be construed liberally. 4. Tenants in common of personal estate cannot have partition at common law, hence a court of equity is the proper tribunal to decree a partition of it. 4. Held, on a bill to impeach an award, evidence of the merits only is to be received so far as it throws light on the conduct of the arbitrators. It is irregular for two of them to meet without notice to the third, though this is not sufficient to set the award aside, if the substance be settled in his presence. Semble. $5. Judgment on bond by warranty of attorney. The parties submitted all matters in dispute to A, B, and C, their award to be final. Held, this reference was on the act of 1705, and not at common law, though not made directly under a rule of court. See 6 Binn. 422. § 3. Where there is a submission, the award to be made in a time named; before this time is expired, the parties, by another deed, may extend it. 2 Barn. & Cres. 179-189; see ch. 141. a. 3. s. 14; ch. 141. a. 3. s. 13; 1 Taunt. 656; ch. 111. a. 2. s. 2 ; 2 Barn. & Cres. 345. The death of one party to a submission determines the arbitrator's power. P. 801. If a party receive the costs of reference by the rule thereof awarded, he cannot move to set the award aside. 5. Time enlarged by the arbitrator being authorised by Cres. 144, 407. the parties. Cause referred to A, and B, they to choose a third referee. A named one and B another, and they drew lots to decide which, &c. Held this mode was bad. 4 Barn. & Cres. 103. 6. If parties submit by writings, not sealed, and insert a penalty, it is incurred by one who revokes. |