Lead Opinion
In the first count of the declaration, it is averred, that, in consideration that the plaintiff would forbear and give day of payment to one Bushnell, for a reasonable time, the defendant would pay to him the sum, in which Bushnell was indebted. And in the second count there are the same allegations, with this difference only, that instead of a promise to pay, the allegation is, of a promise to guaranty the payment.
To prove these allegations, the plaintiff adduced in evidence a note, given by Bushnell, to one Huntington, and by him assigned to the plaintiff, with the defendant’s indorsement thereon; but from which, by the plaintiff’s laches, the obligation of the defendant, as indorser, had become extinguished; and another note, executed by Bushnell to the plaintiff, to which the defendant never was a party. Superadded to this, the plaintiff exhibited parol evidence, by which he claims to have proved the promises by him alleged. These promises for the debt of another person, not being in writing, are, undoubtedly, within the statute of Frauds and Perjuries. King v. Wilson, 2 Stra. 873. Bul. N. P. 281. Fish v. Hutchinson, 2 Wils. 94. 1 Saund. 211. a. Sears v. Brink, 3 Johns. Rep. 211. A promise on a new consideration rests on different principles, and has never been sustained on the forbearance of a demand against a debtor.
It has been insisted, that a parol promise subsequent may be attached to a precedent indorsement, and the contract be considered to be in writing; but this is merely a fiction,-a creature of the imagination only. A verbal promise, by an ingenious subtility of this sort, cannot be invested with a new
The third count in the plaintiff’s declaration, is for money had and received, by the defendant, to his use, of one Leverett Bissell. To sustain this count, the plaintiff claimed to have proved, that the defendant had in possession a promissory note, given by Bissell to one Bushnell; which Bushnell had directed him to collect and pay to his creditors; after which, on the consideration expressed in the declaration, the defendant promised to pay the money, when collected, to the plaintiff. By way of defence for the non-performance of this promise, the defendant claimed to have proved, that before the money was collected of Bissell, he was commanded, by Bushnell, to make payment of it to one Hyde, which, accordingly, he had done.
It has not been disputed, that an action against the defendant is sustainable, on his express promise; and this, in my opinion, is the plaintiff’s only remedy. Had there been no revocation, by Bushnell, of the authority originally given; when the money was collected of Bissell, the defendant would have held it in trust for Bushnell's creditors. It was not in the defendant’s power, by his contract, to confer on the plaintiff a specific right to the money in question, as it was not his, either to enjoy or dispose of; and without this specific claim the action for money had and received cannot be supported.
The authority given by Bushnell, was unquestionably revocable; and having been actually revoked, when the money came into the defendant’s hands, it was the money of Bushnell. That such authority had been given, appears not to have been known by Bushnell's creditors; and on their part, there was neither consideration nor assent; nor were they under any obligation to suspend their demands, or receive the money: The power imparted, by Bushnell, to the defendant, was naked, without interest, and therefore revocable. Had the power been coupled with an interest, it would have been irrevocable. These principles are familiar,
Concurrence Opinion
thought, that the power given by Bushnell to the defendant to pay over the money to the plaintiff, could not be countermanded, so as to defeat the plaintiff’s right.-In other respects, he concurred in the opinion delivered by the Chief Justice.
New trial not to be granted.