5 Iowa 510 | Iowa | 1858
The first assignment of error is, that the suit is brought on a judgment recovered against the steamboat Hamburg, whilst defendants had no interest in her, and yet the court decided that, as they subsequently purchased an interest in her, they were liable personally for this judgment. As we understand the case, the court did not decide this, but its decision falls under the next assignment.
The second asignment is, that the court erred in deciding that a verbal promise by defendants to the assignor of the plaintiff, after purchasing an interest in the boat, that on certain conditions, they would pay the judgment, could be assigned by the creditor, (Eishner), to the plaintiff, and that he was not entitled to recover thereon. The third error assigned rests on the decision, that the promise was not one to answer for the debt, default or miscarriage of another, and that it was not within the stdSute of frauds. In the pleadings, the parties made the issue, (as of fact), that the promise was not within the statute of frauds. This was a false issue, being one of law, and not of fact. The fourth is alleged to lie in overruling the demurrer and pleas of defendant.
It will be convenient to dispose of these last two assignments, first. The fourth is but a summary of the others. On the third, we concur in the opinion of the court below, the plaintiff’s claim was a lien on the boat, and in this position of things, the defendants purchased her; and then
The only question of any considerable doubt, is whether the present plaintiff can avail himself of the promise made to Eishner. If the action had been brought in the manner formerly usual, that is, in the name of Eishner, for the use of Barker, it would not be contended, it is presumed, that the promise had lost its force, but the assignee would receive the benefit of it, through the use of the name of the assignor. Then does the fact, that the statute permits the assignee to sue in his own name, cut him off from the benefit of it? No good reason is perceived for so holding.
Again: suppose the promise had been, that if Eishner would withhold from selling, for the space of one month, they would pay the debt at the end of that time; and suppose that during the month, Eishner assigned the judgment and claim, as he has in this case, and the assignee still withholds the sale, could we hold that the promise is gone ? The defendants have received, and are receiving, the benefit of the agreement, and we do not readily apprehend what principle of law or equity should discharge their obligation. To urge that the promise was made to one person, and the demand is now held by another, is but adhering rigidly to the mere terms and form of the contract, and overlooking its more important essence. Properly speaking, the promise is not personal to Eishner, but is -made in respect to the demand — or in respect to the boat and its liability to the demand — and if the assignee witholds the sale, as the assignor contracted, the promise must enure to the benejfit of such assignee. In such case, the consideration moves in part from the assignee. Although there is some difficulty in arriving at an entirely satisfactory con