76 Vt. 353 | Vt. | 1904
In February, 1895, the defendant purchased of the plaintiff,. for five hundred dollars, a half interest in a
In the following August the plaintiff claimed to> have received an offer of six thousand dollars for the horse which he desired to accept. The defendant was opposed to the sale, wished to hold the horse for a higher price, and verbally guaranteed that the plaintiff should suffer no loss if he refused the offer. On the same occasion the defendant loaned the plaintiff sixteen hundred dollars, the latter being in want of money and having expected to obtain it from a sale of the •horse. In consideration of the guaranty the plaintiff refused the offer. In February, 1896, at the plaintiff’s suggestion, the defendant drew up and signed a writing as evidence of the loan and guaranty, and the defendant then, as a part of that transaction, cancelled the stipulation in the former writing in respect to- the offer to “give or take.” The parties continued common owners of the. horse until January, 1900, when, having become nearly worthless, he was sold at auction by the plaintiff for eighty dollars.
The plaintiff sues upon the verbal guaranty, alleging in his declaration the common ownership, the offer of six thousand dollars, his authority and right toi sell for himself and the defendant, the defendant’s request that the offer be rejected, the guaranty, the rejection of the offer at the defend
The defense was that the professed offer was fictitious and that the guaranty was obtained by fraud. This was the only question of fact submitted to the jury in relation to the guaranty.
The defendant submitted four requests to' the court for instructions to the jury, but only the following one need be considered here:
“That the plaintiff had no- legal right to sell the horse, and that his agreeing not to do what he had no legal right to do was no consideration for an undertaking or promise on ?he part of the defendant.”
The case comes here upon the defendant’s exceptions to the refusal of the court to< direct a verdict and to comply with his requests to charge.
The plaintiff’s foregoing the offer of six thousand dollars for the horse was a sufficient consideration for the defendant’s guaranty, if the plaintiff, from the nature of the ownership', had a legal right to make the sale, or if the defendant, at some time during the ownership, had given him such authority.
The parties were common owners of the horse, and neither could sell his co-tenant’s interest without the 'Other’s consent. Goell v. Morse, 126 Mass. 480; Walker’s Admr. v. Walker, 66 Vt. 285, 29 Atl. 146; Irwin v. Williar, 110 U. S. 499; Dowling v. Banks, 145 U. S. 512. The guaranty, therefore, was without a consideration resting upon the ground of a legal right in the plaintiff to make the sale because of the common ownership. It was a guaranty to' the plaintiff against loss for refusing an offer that he had no legal right to accept. The plaintiff does not controvert this rule of law,
It was competent for the plaintiff ho prove, under the allegations in the declaration, that the defendant, at some time during the common ownership, gave him authority to sell the horse. Upon an examination of the record we cannot say that conferred authority was not claimed by the plaintiff, nor that there was no' evidence to support such claim, though neither party testified directly to that fact. The fact that the defendant requested the plaintiff not to1 sell the horse and gave him a guaranty against loss if he would refuse the offer of six thousand dollai-s tended to show that he then, understood that the plaintiff had a right to' make the sale, either because he had given him authority, or that such authority was incident to the common ownership. Presumably he would not have made the request and given the guaranty if he had understood that the plaintiff had no- right to. malee the sale. His action was consistent with the idea of authority acquired by the plaintiff by law or by the defendant’s consent. The defendant’s answer, “I suppose so,” to the cross-question, whether Chase had the right to enter the horse for races or dispose of him, also1 tended in the same direction.
The request to1 charge was not sound because the evidence referred to was in the case and tended to show that the plaintiff derived authority from the defendant to- make the sale, and the record does not show that it was not so claimed in argument. For the same reason the court could not have complied with the defendant’s motion for a verdict.
Judgment affirmed.
