20 Barb. 151 | N.Y. Sup. Ct. | 1855
The defendant’s first ground of error is, that the referee neglected to report upon all the issues made by the pleadings. The code, § 272, requires the referee to state the facts found, and his conclusions of law thereon, separately. This is in the nature of a special verdict, and enables the court, on appeal, to declare readily, whether or not the referee erred in the application of thé law to the facts. In this action the plaintiff averred that he paid the debt to Baker at the defendant’s request, and as the averment was specially denied by the answer, the defendant insists it became a material issue upon which the referee should have directly reported. But I do not understand that section 272 requires the referee formally to report on all the issues formed by the pleadings. If there are issues upon which no evidence is given, he need not notice them in his report. However that may be, the objection is not available on this motion. If dissatisfied with the report, the defendant’s remedy was by special motion to set aside or correct. The allegation of request was only important as a rule of pleading. In declaring upon an indebtedness for past service, it is necessary that the service be averred to have been performed upon request; otherwise, from all that would appear upon the record, it may have been a voluntary courtesy. (Comstock v. Smith, 7 John. 87. 6 Wend. 647.) And such averment, like other issues, may be sustained by evidence from which a request might be implied. On the trial the plaintiff did not seek to prove any previous express request, and aside from the beneficial nature of the transaction, there was nothing from which a request could be implied. From these facts, and from the further fact that this issue was urged upon the referee at the hearing, and his omission to find a previous request, this case must be considered as if none such was made, and that the payment was a voluntary act. If one person, without compulsion of law, or legal obligation, pay the debt of another, without a previous request, the debtor is not liable for the amount thus paid. (Bartholomew v. Jackson, 20 John. 28. Dunbar v. Williams, 10 id. 259.)
But the plaintiff insists that the defendant has made himself
In the case itself, there is no proof to sustain the finding of the referee. All the evidence upon this branch of the case was from Levi and Daniel C. Ingraham and D. W. Johnson. The first named witness testified that in June, 1849, in a conversation with the defendant about his ability to construct a fence, he said he owed the plaintiff near $300 on the Barker matter. The third witness was present and heard the same conversation. The second witness testified that the defendant, in 1848, in enumerating his debts to him, mentioned one due to the plaintiff for money paid to Baker; that the defendant once proposed to this witness that the plaintiff and another person should buy a store of him, and that it would nearly pay the Baker debt. The plaintiff was not present at either conversation. The most that could be made from this evidence was an implied adoption of the payment and promise to pay. (Sands v. Gelston, 15 John. 511.)
To avoid the question of consideration, the plaintiff insists that an implied promise is equivalent to a previous request. There is no case which quite sustains that position, although Doty v. Wilson, (14 John. 378,) comes very near to it. There the plaintiff, a sheriff, having arrested the defendant on a ca. sa., suffered him to escape, and was compelled to pay the judgment; the defendant afterwards promised to pay the amount; and it was held the sheriff could recover on the promise. Thompson, chief justice, said: “ When a man pays a sum of money for me without my request, and I afterwards agree to the payment, this is equivalent to a previous request to do so. The benefit to the defendant, connected with his express promise to pay, must be deemed equivalent to a previous request. It was an adoption of the payment as made for the benefit of the defendant, and a subsequent ratification was equivalent to an original command.” The reasons why a debtor is not liable to
Was there any consideration to support such promise ? The language of the note to 3d Bos. Pul. 249, was adopted in this state as early as 1816, in Smith v. Ware, (13 John. 257,) which holds “ that an express promise can only revive a precedent good consideration which might have been enforced at law, through the medium of an implied promise, had it not been suspended by some positive rule of law, but can give no original right of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statutory provision.” In this state “ a moral obligation to pay money, or perform a duty, is a good consideration for a promise to do so, where there was originally an obligation to pay the money, or do the duty, enforceable at law but for the interference of some rule of law. Thus a promise to pay a debt contracted during infancy, or barred by the statute of limitations, or bankruptcy, is good without' other consideration than the legal obligation. But the morality of the promise, however certain, or the duty however urgent, does not of itself suffice for a consideration.” (1 Parsons’ Contracts, 360. Ehle v. Judson, 24 Wend. 97. Geer v. Archer, 2 Barb. S. C. Rep. 420. Chilcott v. Trimble, 13 id. 508.) The English cases are still more explicit. The rule in Eastwood v. Kenyon, (11 Ad. & Ellis, 438,) is decisive of this case. It is there held that “ a pecuniary benefit voluntarily conferred by
Judgment reversed and new trial ordered; costs to abide the event.
Hand, Cady, C. L. Allen and James, Justices.]