Gardiner v. Hopkins

5 Wend. 23 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

If, on the examination of the facts contained in the bill of exceptions, we should think the verdict was against the weight of evidence, that would not be a ground to reverse the judgment in the court below. We are to review the questions of law presented by the record, and examine the facts only with a view to come at a proper understanding of the questions of law.

It was fairly left to the jury to say whether the defendant below actually made the promise set forth in the declaration, and they found that he did make it. On the assumption of this fact, his counsel urged to the court on the trial, that the promise, according to the evidence on the part of the plaintiff was merely a collateral undertaking for Wiley’s debt, and, to be binding on the defendant, should be evidenced by writing. The court decided that it was an original contract between the parlies, and sustained by a sufficient consideration—the delivery by the plaintiff to the defendant of several signatures of the book which he had printed for Wiley, upon which he had a lien. The defendant then attempted to shew that the plaintiff below had in fact no lien. The proof shewed that the plaintiff usually worked for Wiley on a credit, but for the work in question, there was no specific contract, as appeared by the declaration of the plaintiff proved by the defendant. The plaintiff claimed to retain the property for his debt against Wiley, and refused to give it up till he obtained the defendant’s undertaking for his debt. Wiley, before he died, told the defendant that the plaintiff must be paid. The judge thought there was evidence enough to carry the question, whether the plaintiff had or had not a lien, to the jury. The evidence to counteract that given shewing that the work was done on a credit was slight, but not so slight, I apprehend, that we should be justified in considering it as none at all. If there was proof on both sides of the question, we cannot say there was error in submitting the matter of fact to the jury.

It was urged, on the argument, that there was sufficient consideration for the promise, if the plaintiff had in fact no lien. He had the possession, and asserted a claim to the property. This claim was not regarded even by the defendant himself as wholly idle; for, by the testimony of one of his own witnesses, he offered to give something to remove it. Besides, the defendant derived an immediate benefit from what he got as the consideration of his promise.

I am inclined to think the promise binding, under the circumstances of this case, though there was no lien.

Judgment affirmed.