After a continuance the opinion of the Court was drawn up by
Weston C. J.The defendant sent a horse in his possession, whether his property or not, to the plaintiff’s stable to be kept. If by implication the plaintiff may have undertaken to keep the horse on the credit of Andrews, under the assumed name of Stearns, that undertaking having been obtained by fraud and imposition, brought about by the contrivance and procurement of the defendant, was not binding upon the plaintiff. The latter is then remitted to his right to maintain assumpsit against the defendant, upon his promise implied by law, for keeping the horse at his request, through the agency of Andrews. And if upon the facts, Andrews was also liable, or White, the owner of the horse real or pretended, the defendant should have pleaded in abatement.
The case was very fairly stated to the jury, by the presiding Judge. The conversation of the plaintiff, as testified to by Grosvenor, best accords with his acts. He would hardly have yielded to the imposition, if he had not been deceived. If Gros-venor was right, the other witness, Gowen, misunderstood a part of the conversation, and thus the discrepancy between them may be accounted for. But if the contradiction was not susceptible of explanation, and the witnesses were equally credible, and there were no other circumstances to incline the scale, the testimony of each would be neutralized, and the case left as it was before.
Exceptions overruled.