Farnham v. Chapman

61 Vt. 395 | Vt. | 1889

The opinion of the court was delivered by

Tyler, J.

The following facts appeared on the trial in thé court below: John 0. Stapleton left a horse towhich lie supposed he had' title, with, one-Brooks, with directions that either Brooks or the-defendant might sell it and apply $125 of the proceeds of the sale in payment of Stapleton’s indebtedness to the defendant of that amount, for which the defendant held his promissory note. The defendant, with Brooks’ consent, afterwards sold'the horse to the-plaintiff for $125, .and applied the sum in payment of his debt. During the negotiations it appeared that Stapleton had replevied the horse from one Hope and that a suit was then pending betweem the last named parties, whereupon the defendant expressed the opinion that if Hope recovered in the replevin suit his remedy would be upon the bond and that the title to the horse was perfect in Stapleton. Subject to the defendant’s objection and! exception the court admitted evidence tending to show that the-plaintiff, upon learning of the suit, declined to purchase the-.horse unless the defendant would personally agree to make good-' the title thereto, and that the defendant then told the plaintiff' that “ If everything was not all right he would make it right,” and the plaintiff replied, “ if you want to make it in that way I will buy him if we can agree on the price,” and thereupon made-the purchase, relying on the defendant’s promise. In the-admission of this evidence- the defendant alleges error. He claimed, and his evidence tended to show that he did not make-the promise.

It is true, as stated in defendant’s brief, that upon the sale-of the horse there was an implied warranty of title by Stapleton,, but the plaintiff did not rely on this implied warranty. It' does not even appear that he knew Stapleton or could rely on his responsibility. His reliance was wholly on the defendant-

If tlie defendant’s promise had been to make the title good df Stapleton did not, it would have been within the statute of frauds, but it was not thus conditioned. His promise was to ■make the title “ all right ” if it was not then right, which he fully believed.

From the uncontroverted facts in the case it may be ..■assumed that the defendant desired payment of his debt from Stapleton; by means of the sale he was to obtain payment, so ■there was a consideration for his promise, in which respect the ■case' differs from the one cited by defendant’s counsel from 46 Mich. K. It is true that the mere fact that there is a consideration for a promise is'not sufficient to take a case out of the statute. What is sufficient for that purpose is clearly stated by Pierpoint, J., in Cross v. Richardson, 30 Vt. 647: “The promise must not only be based on a valuable consideration, but It must be a consideration moving between the promisor and promisee, and from which the promisor is to derive some actual ■or anticipated benefit, in view of which the promise is made. When this is the case, it becomes a new and independent contract, existing entirely between the parties to it, and with which 'the original debtor has no other connection or interest, except that he may be benefited .by its performance. It is then a promise to pay the debt of another person, not collateral to the ■ debt, or for the benefit of that other person, but in view and in consideration of the benefit to be derived by the promisor therefrom.” The same doctrine is recognized in Eddy v. Davidson, 42 Vt. 56, and in Green v. Burton, 59 Vt. 425.

The judgment is affirmed.