Drakeley v. Deforest

3 Conn. 272 | Conn. | 1820

Hosmer, Ch. J.

The deed of assignment, in this case, was invalid, as it referred to a non-existing schedule, in which the property intended to have been transferred was supposed to have been specified. )

From the admissions at the trial, and the verdict of the jury, on the charge given, it must be assumed, that the goods and chattels in question, for the security and satisfaction of certain bona fide debts, were delivered to the plaintiffs, with an inventory or schedule, made by Marshall, before the levy of the defendants’ attachments. At this time, the deed of assignment was in the plaintiffs’ hands. On these facts, the jury might have been directed to presume a re-delivery of the deed of assignment; and this annihilates every objection.

The case may be viewed in a different light. The goods in question, with an inventory of them, and a writing amounting to a declaration of trust, were delivered to the plaintiffs, to be disposed of, and pay the specified debts of certain persons named. This, being a transaction bona fide, and with the assent of the creditors, constitutes a transfer of the property. The reception of the goods and chattels by the plaintiffs, legally obliges them to perform the duty assumed ; and the suggestion of want of consideration is without any support.

It has been contended, that the agreement between Marshall and the plaintiffs was within the statute of frauds and perjuries, on the supposition that the promise was to pay the debts of another person. * The case has no relation to the statute of frauds. The delivery of the goods to the plaintiffs constituted a distinct and sufficient res gesta, on which to sustain the action. The engagement made by the plaintiffs was to deliver over property received to certain persons named ; and the nature of the transaction is the same as if, instead of paying debts, the avails of the goods were to undergo another transmission. The principle is stated in Castling v. Aubert, 2 East, 325. And it is justly said, by Seijt. Williams, in a note in Saunders, “ that where the promise is founded upon ti tome new consideration, sufficient in law to support it, and is not merely for the debt, &c. of another, such an undertaking, though it be in effect to answer for another person, is considered as an original promise, and not within the statute : as wjjere promises B. to pay him a sum of money, in case he will withdraw his record in an action of assault and battery." 1 Saund. Rep. by Wms. 211. a. Read v. Nash, 1 Wils. 305. Stephens v. Squire, 5 Mod. 205. Williams v. Leper, 3 Burr. 1886.

The other Judges were of the same opinion.

New trial not to be granted.