1 Wis. 500 | Wis. | 1853
By the Oouo%
We do not think that the declaration in this case, sets out a good cause of action. The substance of it is, that Tibbitts & Gordon, who were the plaintiffs below, having been summoned to answer in the U. S. District Court,'as the garnishees of Gleason, at the suit of the. United States? at a term of the District Court of the United States for this district, holden the first Monday of July, 1851, informed Lakin, the defendant below (who was the attorney of the United States for the District of Wisconsin, and had charge of the suit on the part of the United States,) that they were ready and willing to appear before the said court, and answer, touching their liability as garnishees of Gleason ; that the defendant pretended he was not ready to call on the suit and receive the answers of the plaintiffs as such garnishees, and did then and there promise and agree to and with the plaintiffs, and with said Gleason, that when he was ready to call on the said suit, and receive the answers of the plaintiffs as the garnishees of Gleason, he would notify the plaintiffs, thatthey might appear and answer. The declaration then states, that the defendant, intending to injure the plaintiffs, did
The defect in the declaration, which makes it incurably bad, is the omission to state any intention to injure or deceive the plaintiffs by the defendant, when he made the promise, or any circumstances which show that he was under any legal obligation to perform his engagement. It appears that the plaintiffs, who were summoned to appear aud answer in the court as the garnishees of Gleason, obtained a promise from the defendant that he would notify them of the time when he would call on the suit, so that they might appear and answer.
This promise was made by the defendant without any consideration, and he is not charged with any fraudulent design in making it. We think that it would be going farther than any of the cases cited will warrant us, to hold that the defendant is liable for the damages occasioned by a breach of this agreement, although the breach is charged to have been attended with a fraudulent design on the part of the de-fendant. Perley et al. vs. Freeman, 3 D. & E. 24; Bayard vs. Malcolm, 1 J. R. 453; Young vs. Cavell, 8 J. R. 23; Wickware vs. Bryan, 1 Conn. Rep. 18; Garland vs. Davis, 4 Row. R. 149. The case of Wilkin
It appears that many exceptions were taken to the ruling of the judge, at the trial, but as we have arrived at the conclusion that the declaration is defective, it is not necessary to notice them.
The judgment of the County Court is reversed, with costs.