Brown v. Attwood

Weston J.

delivered the opinion of the Court at the ensuing May term in Kennebec.

It is contended in this case, that there is a variance between the contract declared on, and that proved. The whole consideration moving from Spear, the debtor of the plaintiff, viz. the sale of the vessel, is stated, but the whole agreement on the part of the defendants is not set forth. The amount to be paid for the vessel, as agreed between the defendants and Spear, was to depend upon what site might produce upon a resale, which was to be made by them. This part of the agreement is not stated in the declaration, but all is stated of which the plaintiff complains, or which appears to be in controversy. Nor is it pretended that the part omitted in any manner varies or qualifies that part of the contract, upon which the plain-tilfhas declared. Whatever may be the liability of the defendants in respect to other stipulations, unless they succeed upon other grounds of defence, they expressly assumed to pay to the plaintiff die amount of his claim. The variance above alluded to, was the only one suggested at the trial, which is reserved in the report. Another variance has been pointed out in argument, viz. that by the declaration, the defendants were to pay the plaintiff/ when the vessel was sold. In the testimony of Spear as reported, there is nothing stated as to the time of payment; but the report professes to set forth only so much of the testimony of Spear as related to the points reserved, which upon this head were limited to the amount of consideration to be paid for the vessel, and not to the time of payment.

Mills v. Sherwood, 8 East 7, was ail action brought upon the warranty of a horse. The declaration averred, that the defendant warranted the horse to be young, and worth 680. The horse, though young, was proved not to be worth 680. The evidence was, that the defendant warranted it sound and worth 680, and that if was a young horse, and had never been in harness. It was objected that the evidence did not support the count; but the court decided otherwise. It was there distinctly held that if the plaintiff stated the whole consideration for the promise, which has been done here, it was sufficient if the plaintiff stated those parts of the defendant’s promise, the breach of which he complains of, and states those truly, without setting forth other parts of the contract irrelevant to that breach. The same doctrine was held in Stanwood v. Scovel, 4 Pick. 422. Indeed the whole promise, made by the defendants for the benefit of the plaintiff, is set forth. They made other stipulations for the benefit of Spear, in which the plaintiff had no interest. It may be said that if an action may be maintained by the plaintiff, i the defendant may also be liable to Spear, and thus chargeable in two actions upon one contract. And doubtless this may be the consequence, if it results from their agreement. There can be but one action upon an entire contract, but there may be more than one upon a promise to pay money, or to perform any other duty at successive periods. So if a party upon legal consideration, the purchase of merchandize, for instance, promise or covenant to pay part of the price to A, and part to B, and part to C, the proportions being settled, upon a breach, he is liable to each for his proportion, in which it will be sufficient for each to aver so much of the promise or covenant, as enures to himself.

It is further objected, that the promise is void under the statute of frauds. But we must regard this case as within the principle of Dearborn v. Parks, cited in the argument. The defendants promised Spear, that they would pay a portion of the purchase money to the plaintiff. It was their debt they stipulated to pay. And the authorities referred to in the case last cited, show that the party, to whom performance is to be made, may have the action. Whether that party is or is not the creditor of him, from whom the consideration moved, is not essential to the liability of him who promises. In most of the cases cited in Dearborn v. Parks, the sum stipulated to be paid was a gratuity from him, from whom the consideration moved. But whether it is a gratuity, or whether it is intended to extinguish an antecedent debt, is no concern of him who promises. It is sufficient that he has promised, for a valuable consideration, to the person, whom the party paying the consideration thought proper to appoint. When he pays, he pays his own debt, and if it operates also to discharge the debt of another, it does not change the original character of his own engagement. In order to determine whether a promise is conditional or collateral, it is often a decisive criterion, that the party receiving the consideration is hold liable ; but the case befoi e us is one where there is a new consideration, between the newly contracting parties.

The interest of the witness, which is the last objection, in the subject in controversy, was exactly balanced. If tiro plaintiff prevails, his debt to him is extinguished; if not, his debt to the defendants is extinguished to the same amount.

Judgment on the verdict.

Note. In the above case a question arose, as to the taxation of costs, between the plaintiff and the principal defendants ; and another between the plaintiff and the trustee. In relation to the former the facts were these. In the Court of Common Pleas the jury returned a verdict in favor of the plaintiff for $712,28. The defendants appealed ; and in this court the jury gave a verdict for the plaintiff for $(397,37. The cause was then continued from JYov. term to May term, 1831, on a motion for a new trial made by the defendants. Judgment being entered on the verdict for the above sum and interest from JYovemher, amounting to $720,73, the defendants’ counsel moved for their costs since tlie appeal, according to Stat. 1826, ch. 347, sect. 4 ; and cited 1 Greenl. 15; 2 Greenl. 66, 397.

The Court

decided that the defendants were entitled to their costs since the appeal, as by means of such appeal they had obtained a reduction of the damages; observing that if judgment had been rendered at the same term at which the trial was had, no question could have arisen as to the defendants’ title to costs ; and though the motion of the defendants caused the delay of judgment till May term, the only penalty they must suffer for this was tho payment of interest on the verdict from the time it was returned until the judgment was rendered, leaving the above provision of tlie statute as to the question of costs, unaffected by the motion and the addition, though such addition increased the sum for which the judgment was entered -to more than the amount of the verdict in the Court of Common Pleas.

As to the latter question the facts were these. The trustee lived at Belfast in the county of Waldo, and there made his disclosure under oath before a justice of the peace for that county, therein expressly charging himself as trustee. The Stat. 1821, ch. 61 sect. 6, provides that when a supposed trustee dwells in any other county than that in which the writ is returnable, he shall not be required to attend court personally, but may, by attorney, declare what goods, effects or credits of the principal he had in his hands at the time of the service of the writ, and offer to submit himself to an examination on oath ; and if the plaintiff shall think proper to examine him on oath, the answers may be sworn to before a justice of the peace of the county where such supposed trustee dwells. In the present instance the trustee never personally attended court, but transmitted his disclosure to his attorney, who presented it to the Court of Common Pleas at the first term. The Justice’s fee for taking the disclosure was only one dollar. There is no statute which give costs to a trustee, unless he attends personally at the first term for the purpose of disclosure on oath. The Stat. 1828, ch. 382 provides that “in all actions where any person or persons shall be summoned as trustee or trustees, such trustee or trustees who shall appear at the first term and disclose, shall be entitled to costs, in the same manner as parties in civil actions who have an issue joined for trial” — and the section further provides that such trustee may deduct, from the money in his hands, the amount of his costs, and pay over the balance to the officer holding the execution.

The Court

observed that after the trustee in this case had charged himself by his disclosure and transmitted it to court, or carried it there, he had nothing more to do ; his presence there in person or by attorney was wholly useless. No judgment was to be rendered for the costs ; he was to pay himself — and even if the plaintiff had failed in his action against the principals, there was no provision for a judgment and execution for the trustee’s costs. And they were clearly of opinion that the trustee could no!, injustice, be entitled to anything more for his services in transmitting his disclosure to court, than his constructive travel of forty miles — three days attendance — -aitoniey’s fee, Aand the one dollar charged for the disclosure.