Provenchee v. Piper, 36 A. 552

Provenchee v. Piper

36 A. 552 | N.H. | 1894

At the beginning of the negotiations on Sunday, the plaintiff, by virtue of his mortgage, had the legal title to the horse, and Forest had the right to redeem it from the mortgage. P. S., c. 140, s. 19; Leach v. Kimball,34 N.H. 568; Sargent v. Usher, 55 N.H. 287, 289. The Sunday contract between Forest and the defendant was designed by them to transfer to the defendant Forest's right only. Neither party understood that the title of the horse passed, or that the plaintiffs right as mortgagee was affected. The plaintiff declined to negotiate on that day, and did nothing that can be regarded as a waiver of the mortgage. He had the same title to the horse Monday morning that he had the previous day. White v. Phelps, 12 N.H. 382. The defendant purchased this title. In consideration of the defendant's promise to pay the amount due upon the mortgage note, the plaintiff promised to release his interest in the horse, and fulfilled the promise. The plaintiffs promise was a sufficient consideration for the defendant's promise. Chit. Con. 46. Although the contract grew out of a transaction that took place on Sunday, it was wholly made on Monday, and is not affected by the statute (P. S., c. 271, s. 3) prohibiting the doing of business on the first day of the week. Stackpole v. Symonds, 23 N.H. 229.

The contract was not within the statute of frauds (P. S., c. 215, s. 2). It was not a contract for the payment of Forest's debt, but for the purchase of the plaintiffs interest in the horse. The, fact that Forest's debt would incidentally be discharged by the performance of the contract did not bring it within the operation *33 of the statute. Allen v. Thompson, 10 N.H. 32; Robinson v. Gilman,43 N.H. 485; Britton v. Angier, 48 N.H. 420, 425; Lang v. Henry,54 N.H. 57, 61.

The plaintiffs and Forest's contracts with the defendant being independent of each other, the former is not affected by a breach of the latter. So far as appears, the plaintiff's representation concerning the horse was true.

Exceptions overruled.

WALLACE, J., did not sit: the others concurred.