8 N.H. 154 | Superior Court of New Hampshire | 1835
delivered the opinion of the court.
Whatever legal claim the plaintiff may in fact have against the defendant by reason of the contract stated in his first count, it is very clear that no claim which is stated in the declaration can be sustained upon the evidence offered at the trial.
In the first place, the special count is not proved as laid.
The contract stated in that count is, that the defendant,
The consideration here stated is in fact the interest which the defendant had to defend the suit, she being liable, by reason of the real assets descended to her from James Cofran, to make good his warranty.
But there was no evidence that she had any lands by descent or by devise from James Cofran. It did not then appear that she had any thing that could render her liable upon his covenant of warranty, or that she had any interest whatever in the suit which was pending against the plaintiff.
The consideration, then, stated in the first count, is not proved at all, and there is no pretence that the verdict can stand upon that count. For it is a well settled rule, that the consideration of a promise must not only be proved, but it must be proved as laid in the declaration. 1 Chitty's Pl. 295 and 303.
In the next place, the general count for money paid, is not supported by the evidence.
If it had been shown that the defendant was the heir of James Cofran, and had real assets by descent from him, perhaps the plaintiff might have recovered upon this count; for then the money expended by the plaintiff might have been considered as expended in some measure on her account.
So if it had appeared that the plaintiff was induced to defend the writ of entry by the defendant’s request, perhaps this count might have been sustained.
But it does not appear that the defendant had any interest in the event of the real action, or that this plaintiff undertook to defend it at the request of the defendant. For aught that appears, her promise to pay a portion of the expenses was that of a mere gratuity, to enable the plaintiff
There are cases, in which a promise to repay money advanced. or to be advanced, would afford a sufficient ground to presume that it was advanced, or to be advanced, at the request and on account of the promisor. But here the promise was to bear a portion of the expenses which the plaintiff might incur in defending a suit brought against himself —and it seems to us that the promise alone does not, under all the circumstances disclosed in this case, afford any ground to presume that the money expended by the plaintiff in his own defence, was expended at the request or on account of the defendant. For aught that appears, her promise may have been an unlawful act of maintenance. And before the action is sustained on this count, it ought not only to appear that the money was advanced on account of the defendant, but that it was lawfully advanced on her account.
For these reasons, the
Verdict is set aside and a new trial granted.