3 Conn. 438 | Conn. | 1820
The declaration contains seven counts. The object of the pleader in ringing so many changes on a plain, concise written contract, is not apparent. I mention this circumstance merely to express the regret I feel, when called to witness a departure from the simplicity of our ancient practice, so much better calculated to administer speedy and substantial justice, than the labyrinths of British models, which are as useless to us as the titles, the robes and the wigs of their reverend Judges.
To support this declaration, the plaintiffs gave in evidence a letter from the defendant in these words : “ Messrs. Rapelye & Purdy; Gentlemen, My brother Roswell is wishing to go
If this reasoning he correct, a new trial must be granted. the motion presents other grounds. The letter in question proves neither count in the declaration.
I take the law to be settled, that where there is an express contract, it extinguishes the implied one. Shelton & al. v. Darling, 2 Conn. Rep. 435. In Cutter v. Powell, 6 Term Rep. 320. 324. Lord Kenyon says, “ That where the parties have come to an express contract, none can be implied, has prevailed so long as to be reduced to an axiom in the law.’ And the defendant ought to have notice by the declaration, that he is sued upon it. Weston v. Downes, Doug. 23. And eyery such contract must be proved as laid. Gwinnet v. Phillips, 3 Term Rep. 643. 646, Bristow v. Wright, Doug, 640. Anon. 1 Ld. Raym. 735. Saxton & al. v. Johnson, 10 Johns. Rep. 418. Thompson v. Jameson, 1 Cranch, 282. Phill. Ev. 168.
The letter in question furnishes evidence of an express contract; and, therefore, does not support a general indebita-tus assumpsit, as laid in the fourth, fifth and sixth counts.
It is a collateral undertaking to pay, if the debtor did not; and, therefore, did not authorize the plaintiffs to make their charge to the defendant directly, as laid in the third count.
The two first counts, being special, must be proved as laid.
In the first, it is averred, that the defendant promised to be answerable for the money, at the proper time of payment. But the defendant said, “ I will hold myself accountable for the payment, should he not pay, as you and he shall agree.” In the second count, it is averred, “ that the defendant prom, ised, that said money should be regidarly paid, as said Roswell should agree,” absolutely. But the promise is conditional.
The seventh count not only sets out a contract variant from the guaranty, but a waiver or extinguishment thereof, by a new obligation from the principal debtor. This, according to the civil law, whence most of our principles relative to contracts are derived, is a discharge of the guaranty. Thus saith Pothier, Treatise on Obligations, part 2. c. 6. “ As suretyship is an accessory obligation to that of the principal debtor, the extinction of the principal obligation carries with
1 advise a new trial.
New trial to be granted.