Glass v. Beach

5 Vt. 172 | Vt. | 1833

The opinion of the Court was pronounced by

Baylies, J.

In this action the plaintiff declared in substance as follows : That on the first of Janaary, 1830, the defendant was indebted to the plaintiff’s wife $ 10, for work and labor done and performed for the defendant, at his special instance and request, before her intermarriage with the plaintiff. And at the same time she was indebted to Isaac S. Foot & Co. in the sum of $6,51; and in consideration she deducted the sum from her account against the defendant, and discharged the balan.ee, he promised to pay her debt to said Foot & Co.; but neglected to pay the same; and said Foot & Co. brought their action against the plaintiff and his wife for the sard ,$6,51; but before judgement, the defendant, in consideration of the premises, undertook, and promised the plaintiff to pay said Foot & Co. the said $6,51, and save the plaintiff harmless; but neglected so to do ; and the plaintiff had to pay said Foot & Co. $9,51, being the amount of damages and costs they recovered in their said action; so the defendant has not kept said promise, &c. .

It appears that Wanton Wells, father of plaintiff’s wife, testified for the plaintiff, before the Justice Court; and Uf-ter the appeal, and before trial in the County Court, Wells' died. His death being proved, it was consistent with the rules of law for the plaintiff to give in evidence, on the trial of this action before the County Court, what Wells testified before the Justice Court: It may be given in evidence, either from the judges notes, or from the notes that have been taken by any other person, who will swear to their accuracy ; or the former evidence may be proved by any person, who will swear from his memory to its having been given, Mayor of Doncaster vs. Day, 3 Taun. 262. In this case, there were no notes taken at the trial by the Justice of Peace, or by any body else; but soon after the death of Wells, justice Blin reduced his testimony to writing : it was this writing which was produced by Mr. Blin, on the trial before the County Court, who testified what Wells swore at the former trial. But the defendant, after - the testimony of Well was given to the jury by Mr. Blin, undertook to discredit Wells, by the testimony of four ~ witnesses, who said his character for truth was not good. And then the plaintiff called three witnesses, whose evidence tended to support Well’s character : It was for the •jury to say what credit should be given Wells, after hearing the witnesses for and against him. We consider the County Court did not err by instructing the jury, “that if they believed the testimony of Wells, there was evidence of a consideration, and that if his testimony was true, the promise was proved, and they must find for the plaintiff.- Whoever reads the testimony of Wells in-this case, must come to the conclusion to which fhe County Court arrived in their charge. The facts, that the pláintiff’swifé, when she settled with the defendant, left in his1 hands $6,51,' of her wages for him to pay over to Foote & Co., in discharge of her debt; and the defendant promising to piiy the same-, but neglected so to do, until Foote &, Co. commenced their action against the plaintiff and his wife for said debt; were a'sufficient consideration for'the defendant’s promise to pay the-$6,51 to said Foote & Co., and to save the plaintiff and his wife harmless from costs in the action, which Foote & Co. had commenced against them. I consider, that the defendant', before he made this express promise, was under a moral obligation to do what he expressly promised to do ; and this obligation, if there were no other inducements, was a sufficient consideration for the defendant’s express undertaking. If the promise is only to do what an honest man ought to do, the ties of conscience upon am upright mind are a sufficient consideration. 1 Tidd. 379; Cowper, 290; 4 Vt. Rep. 144.

We have not been furnished with the copy of the judgement, Foot & Co. vs. Glass, and not against Glass and his wife, as stated in the Bilk of exceptions- We thereforo consider that the objection to the copy, which was given in-evidence of the jury, Was probably made without foundation, and is now waived by the defendant; as he does not notice it in his argument. The judgement of tlie County-Court is affirmed.