Cartledge v. West

2 Denio 377 | N.Y. Sup. Ct. | 1845

Gardiner, President.

The circuit judge charged the jury, in substance, that if they were satisfied that when Mumford presented the account, one of. the defendants stated that he would pay it as soon as the assignees got funds to pay it, it would entitle the plaintiffs to recover as upon an account stated. It was urged upon the argument here, that the stating of the account was a new consideration from which the law would imply a promise. Should this be admitted, it by no means follows that a promise will be implied different in its character from that actually made in express terms. If the accounting was a good consideration, it will support the promise which the party really made, and not one of a different character. Suppose the defendants had given a promissory note payable upon time, it will scarcely be insisted that the plaintiffs would be at liberty to abandon the note and sue upon an implied promise. But here the statement or admission of the account is to be inferred only from the promise. The defendants said they would pay it as soon as they had funds as assignees to do so, and this is all they said about it. If we reject this promise we lay aside all the evidence in the case, of an account stated. The promise was obviously conditional. An engagement to pay when the assignees as such were in funds, is very different from a promise to pay forthwith or generally, without regard to particular funds; but the learned circuit judge treated them as identical. There was no evidence that the defendants received any trust funds after this promise was made; bút if there had been it should have been submitted to the jury. Under the charge the existence of such funds was entirely immaterial. The authorities collected in 1 Leigh's N. P. 100, 1, while they state the general rule show that it is so qualified as to render the evidence relied upon in this case unavailable.

For the reasons assigned, I am of opinion that the judgment of the supreme court should be reversed.

Senator Beers also delivered an opinion in favor of reversing the judgment of the supreme court.

On the question being put, “ Shall this judgment be reversed 7" all the members of the court, present, who had heard the argument, to wit, The President and Setiators Beers, Chamberlain, Clark, Corning, Deyo, Emmons, Faulkner, Lott, Mitchell, Porter, Smith and Talcott, (13) voted in the affirmative.

Judgment reversed.