Johnston & Lyon v. Fessler

7 Watts 48 | Pa. | 1838

The opinion of the Court was delivered by

Rogers, J.

The question on which the merits of this case must turn, arises on the third bill of exceptions, and the answer of the court as to the effect of the testimony. The plaintiff declares that, in consideration of delay, and the further consideration that he would accept &c. the defendants as his debtors, and would discharge Duncan & Mahon, they assumed to pay the debt. If a creditor, at the request of a third person, forbear to sue his debtor for a certain time, it is a sufficient consideration to support a promise by such persons to pay the debt. But. a mere foi bearance, without request or agreement, will not render the person liable to an action. Here the alleged consideration of the contract is, that he would accept the defendants as the debtors, and discharge Duncan & Mahon from the payment of the debt. The consideration must be proved as laid in the declaration; and the doubt is whether the plaintiff proved a contract by which the defendants were bound to pay the debt of Duncan & Mahon. The promise of Lyon, who represented the firm, was in the alternative. He said they were not able to give him the money then, but that they would give him iron, if he would take it; or they would pay him in money by the spring following. Here the defendants offered to do one of two things, and if Fessler had closed with either, the contract would have been concluded: but in order to render a contract certain and complete, it is indispensable that there should be the assent of both the contracting parties; or both are at' liberty to recede from it. Fessler did not accede to the offer at the time, as is apparent from the testimony; on the contrary, he said, in answer to the defendant’s proposition, that he would see if he could sell the iron; and if so, he would take it. The other alternative would not seem ever to have been a matter of deliberation with him. For aught that appears, no further communication took place between them; and we are now left to conjecture whether Fessler agreed to accept of his debtin iron, or preferred waiting until spring, and receiving it in cash. The mere fact that he delayed commencing his suit until spring does not remove the difficulty, as his assent to the agreement was a prerequisite' to the consummation of the contract. At the time of entering into the contract, the engagement was all on one side. The other party not being bound, it was"^udum pactum, according to the principles decided in-v. Oxley, 3 T. R. 653. We cannot see a shadow of proof from which the jury could draw the inference that Fessler agreed to accept Johuston &. Co. as his debtors, instead of Duncan & Mahon. It is to be regretted that a contract to pay the debt of another may rest in parol; and such contracts should not be enforced on slight grounds.

This was a suit before the justice, substantially against John Johnston and Jacob B. Lyon, trading under the firm of John Johnston & Co. It was'so understood by all the parties. Both the members of the firm had notice of the suit, and the appeal was entered for both by their common agent and manager. The suit is not, it is true, set out before the justice with technical precision, nor is this nicety required; but, on the appeal, it is the duty of the court to put it into form, and of course there is no error in ordering the jury to be sworn according to the parties, as they are correctly stated on the record. If we were to hold justices of the peace to strict technical rules, it would greatly impair the usefulness of this tribunal; and for this reason we have been very liberal in the allowance of amendments, in all cases where the parties and the cause of action are the same as before the justice.

There is nothing in the objection to the evidence contained in the second bill.

Judgment reversed, and a venire ele novo awarded.