| Me. | Apr 15, 1895
The plaintiff claims that, as the consideration for the sale and assignment to the defendant of a lease of some quarry property, the defendant agreed to pay him the sum of one hundred and twenty-five dollars, and also to assume and pay to him a claim for damages of seventy-two dollars which
The defendant denies that he made an absolute promise to pay the plaintiff this sum of seventy-two dollars, but admits that he agreed to use his influence and best endeavors to collect the claim for the plaintiff.
The jury were instructed that to entitle the plaintiff to recover, it was incumbent upon him to prove a personal promise, on the part of the defendant, to assume and pa}1, to the plaintiff this claim of seventy-two dollars as a part of the consideration of the sale of the lease.
It was obviously immaterial to the plaintiff what authority the defendant had, or what measures he proposed to take respecting the settlement of the claim against the Union. The instructions given to the jury clearly required them to find an original, personal undertaking on the part of the defendant to pay the plaintiff the sum of seventy-two dollars, in addition to the sum of one hundred and twenty-five dollars which was not in controversy, as a part of the consideration of the lease. The statute of frauds was not involved in the inquiry. It was not necessary that, prior to the defendant’s promise to assume and pay this sum of seventy-two dollars to the plaintiff, there should have existed "a personal liability on the part of the defendant ” as a member of the Union. The requested instruction upon this point was properly qualified, and the instructions given were correct.
The other requested instructions were fully covered by the charge, and all the principles of law applicable to the case were clearly stated and correctly applied.
The testimony was conflicting, and if it cannot be said that the report shows a clear preponderance of evidence in favor of the plaintiff, there was sufficient evidence to support the verdict, and we find no justification for setting it aside.
Motion and exceptions overruled.