McCredy v. James

| Pa. | May 1, 1841

The opinion of the court was delivered by

Rogers, J.

Several exceptions have been taken to the charge of the court. But without entering into a detailed examination of each item, it may be sufficient to remark, that we see nothing of which the plaintiff in error has any right to complain. The. charge contains an accurate statement of the case; the law is clearly and distinctly laid down; the facts are left to the jury; and if the case called for the expression of an opinion, there would be no great difficulty in showing that the evidence warranted the verdict. The plaintiff complains of the admission of the paper of the 7th February, 1837, because, as he says, it was not applicable to the issue on any count of the declaration. But in answer to this objection, it is truly said, that it is evidence of the allegation in the first count, that the defendant promised to pay the acceptances as they became due, and the freight and commissions on the acceptances. The evidence on that point is partly in parol and partly in writing; of which the letter of the 7th February is an important item.

The judgment was entered on the first and second counts, and on the count for money paid. Whether the evidence would support the count for money paid, would perhaps, under the authority cited, admit of serious doubt. It is, however, not necessary to determine this point, for if there is evidence on any one of the- counts, there is no reason to reverse the judgment, provided all the counts are good on which the judgment is rendered.

But it is said that two of. the counts are bad, for several reasons, the principal of which are, first, because there is no consideration; and, secondly, because they omit to name,the promissor, and to allege that the promise was made to the plaintiff. In the latter respect, the declaration is informal, and would have been bad on special demurrer ; but after verdict, it is good enough, particularly in this state, where amendments are so much favoured. Had the errors been pointed out, the declaration would have been amended on the spot, and it does not (except in some very rare instances) advance the cause of justice to permit the party to lie by and reverse the cause, for an error which, if pointed out at the. time, would have been remedied immediately. It i,s not, it is true, distinctly alleged, yet the implication is strong that the plaintiff was the promisee, and that the promise was made to him.

But was there a consideration for the promise ? The allegation that the plaintiff accepted the order to deliver the lard to the defendant, and agreed to be bound bythe order, and to acknowledge him as the owner of the lard, on condition of paying plaintiffs’ acceptances, the freights and commissions on acceptances, and agreed to hold the same subject to his order, in all respects, is, in the opinion of the court, a good and present consideration. It was a benefit (of which the agent of the defendant appeared to be very sensible) to the defendant to have the entire control of the property; and this he was not entitled to have, except by a compliance with the order, which contains express stipulations on the subject, by payment of the acceptances, &c., or which the parties under another arrangement chose to consider as equivalent, á promise to pay them by the defendant, and to furnish funds therefor, as they became due. There is no averment in the declaration that the plaintiff released F ey; but if necessary, perhaps this might be inferred after verdict. Be this as it may, there is a good consideration stated without such averment. We view the arrangement which took place as equivalent to an actual delivery. After the arrangement, they stood in relation to each other as factor and principal.

It must be admitted, that in many respects the declaration is informal and defective j but as a title is set out, the defects are cured by verdict.

Judgment affirmed.