I am of opinion there is no error in the judgment complained of ; and no reason for granting a new trial.
When an agent, acting faithfully, without fault, in the proper service of his principal, is subjected to expense, he ought to be reimbursed. If sued on a contract made in the course of his agency pursuant to his authority, though the suit he without cause, and he eventually succeeds, the law implies that the principal will indemnify him, and refund the expense. For this he can maintain an action of indebitatus assumpsit ; and the proof of these facts will be sufficient to warrant the jury to find the promise.
Such implied agreement is not within the statute of frauds and perjuries.
In the writ of error, it cannot be known by the court, but that the plaintiff relied upon, and proved, an express, written contract.
*523On the motion for the new trial, the admission of parol proof to an express contract was immaterial ; because it was not necessary to prove an express contract ; for the plaintiff could rely on the implied promise, which was not affected by the statute of frauds and perjuries. If the testimony, though improperly admitted, was immaterial, it can be no ground for a new trial.
The deposition was taken in a legal manner.
Trumbull, Edmond, Smith, Brainard, Baldwin, and Goddard, Js. were of the same opinion. Gould, J.On the writ of error, the promises, laid in the two counts, must be taken as express : and the only question is, whether a sufficient consideration appears upon the face of the declaration. Upon this point, I cannot discover bow a doubt can be raised. That a loss incurred by the plaintiff without any fault of bis own, in consequence of his acting as an agent of the defendants, and for their benefit, will constitute a consideration, to support an express promise of reimbursement, on their part, seems to me not to admit of question. The old rule as to the insufficiency of a consideration, past and executed, has been somewhat relaxed by modern decisions. 3 Burr. 1671, 2. 2 Stra. 933. notis. ; but even according to the utmost rigour of that rule, the consideration, in this case, appears to me above all exception : for the promises here are coupled, if not with the previous retainer of the plaintiff, as master of the schooner, yet certainly, as I conceive, with a subsequent adoption and ratification, by the defendants, of his acts, as their agent. Because, by claiming, and receiving the 1300 dollars, (the avails of the voyage to North-Carolina.) as theirs, they, of course, recognized and sanctioned the adventure, by which those avails were acquired. Indeed, the payment of this money to the defendants, upon their demanding it, was, upon any possible supposition, a sufficient consideration. Before it was paid over, it was their property, or it was not. If it was theirs, it could have been so, only upon the supposition, that the voyage to North-Carolina was undertaken by their authority, and of course, at their special instance and request ; for they could not recognize the adventure as their own, for the purpose of asserting a right, *524and, at the same time, disclaim it, to avoid a duty, or liability. And a subsequent promise, coupled with a previous instance and request, is undoubtedly good. Cro. Eliz. 42. 282. Cro. Jac. 18. 3 Salk. 96. 3 Burr. 1671. If, on the other hand, the money was not theirs; there could never be a doubt, that the payment of it to them, was a sufficient consideration to support a promise of indemnity.
Under the motion, the exceptions, taken by the defendants, are resolvable into two : 1. That the depositions of Marceau and Grard were not taken in legal form: 2. That parol evidence was admitted to prove a promise, made more than three years before action brought. I confine myself to these two exceptions, because that clause of the statute of frauds, which relates to agreements, to answer for the “ debt, default, or miscarriage of another,” has clearly no concern with the case. The agreement stated was a mere promise of indemnity, made, not to any third person, claiming against the plaintiff, for any supposed “ debt, default, or miscarriage,” but to himself.
As to the first exception ; it may be observed, that objections of this kind are never favoured, where, to every substantial purpose, a deposition appears to have been fairly taken. But in the present case, I can discover no defect, even in form. The caption is agreeable to well established usage, and as precise as any rule of practice requires.
With regard to the admission of the parol evidence, it is sufficient to say, that the action, (as the case is presented upon the motion,) was not founded upon any express promise. The promise was only a part of the res gesta, and proveable, of course, like any other fact, from which an implied promise might arise.
Hosmer, J. gave no opinion, having been of counsel in the cause.Judgment affirmed. New trial not to be granted.