5 Whart. 89 | Pa. | 1840
The opinion of the Court was delivered by
If the plaintiff below, apprised that the shoes were ordered by the defendants for Blake, delivered them on their credit, he would be concluded by his election; and, without more, he could not turn round to any one else. But might he not subsequently release the defendants by accepting Blake as their substitute; as he might have done had he not known him to be the actual purchaser. It is conceded, as it must be, that ignorance of Blake’s connexion with the purchase, would have authorised a pursuit of him as the actual debtor, and a consequent abandonment of the credit given to-the defendants; and there is no reason why the same result might not be effected with the assent of Blake, who is the only person that could object to a change of the original credit in any circumstances. At the plaintiff’s instance and request, he promised to pay the debt, in consideration that the plaintiff would accept him as the debtor; and this consideration would undoubtedly sustain an action on the promise. If, then, Blake became liable, the defendants were released; for that was an implied condition of Blake’s promise, which, as it did not benefit him, and would not else have prejudiced the plaintiff, would have been without consideration. What, then, is there to prevent the defendants from taking advantage of the condition 7 Nothing but an alleged want of privity. But their assent might perhaps be presumed on the principle of Smith v. The Bank of Washington, (5 Serg. & Rawle, 318.) There is another principle, however, which entitles them to the benefit of it. It was a part of the agreement — and one which has been executed — that Blake should suffer the plaintiff’s bill drawn for funds to meet this very debt, to be protested ; and would it be competent to the plaintiff afterwards to disaffirm the contract for the residue, even with Blake’s consent 7 His agreement to accept Blake as the debtor, was in discharge of the defendant’s liability; and, though made to another, yet if a consideration for it moved from them, it may entitle them to the benefit of it on the principle of Dutton v. Poole, (1 Vent. 318,) expanded by this Court in Hassinger v. Solms, (5 Serg. & Rawle, 8;) and it cannot be doubted that the injury sustained by the protest of their bill, was a consideration. In Hassinger v. Solms, a promise to indemnify the guarantor of a note who had renewed his guaranty contrary to the defendant’s direction, was held to bind him, on the ground of ratihabitio, though made to a third person; because the defendant had benefited by a payment of a part in case of his original liability — a measure which had been exacted as a condition of the renewal. Now to constitute a consideration, gain by the promissor, and loss by the promissee, are equally efficacious; and it is indisputable, not only that the defendants have lost by the
Judgment reversed; and a venire de novo awarded.