18 N.H. 284 | Superior Court of New Hampshire | 1846
The case finds that the evidence tended to prove that Balch, who was formerly the owner of the table in question, being indebted to Bichard Tibbetts and being pressed for payment,proposed “to turn out” to him this table and other furniture; that Bichard Tibbetts declined to receive the articles; that the plaintiff thereupon agreed to take the property, and to guarantee the payment of the note by the first of June, then next, if Balch failed
Assuming that the agreement was thus made, the defendant cannot object that the agreement was not binding between the parties to it, because of the statute of frauds. If it were so as between the parties, it was. upon a sufficient consideration, and was not void nor voidable at the election of a third person, who was a stranger to it. The plaintiff was not bound to take advantage of the statute. But the agreement does not appear from the case to have been within the statute. It is not stated in terms with whom the contract was made, but it must be understood that it was made with Balch, the debtor, for a part of it was that if the money was not paid by Balch at the time specified, the furniture was to be the plaintiff’s, to sell and dispose of as he pleased, and no one but Balch could make that agreement; and the plaintiff might, without any writing, upon a good consideration, make a valid agreement with Balch to pay his debt. Whether Richard Tibbetts could or could not enforce the guaranty is not material. Balch might enforce the-promise to him.
We are of opinion that there was a sufficient delivery and possession to perfect the pledge, if it be regarded as such. The plaintiff agreed to take the property, the articles were present and under his control, and he had manual possession of one of them. This was a sufficient possession, without any formal delivery. And it seems that no act of possession was necessary to invest the party with possession, if there was a present transfer, and the property under his control. So far as appears, this possession of the plaintiff was continued. When he went away he does not appear to have abandoned the possession. If any charge for storage was proper, it might, after that, have been made against him. The property was not left
It appears that prior to this transaction, Daniel Aldrich and the defendant were each authorized by Balch to sell the table; but when Aldrich sold to the defendant he did not act under this agency, nor did the defendant, when he sold it to Tirrell, act under the authority which he had possessed as agent of Balch. Neither of them, in those transactions, understood that Balch had any title. Aldrich sold it to the defendant under an alleged authority from Iiichard Tibbetts, who, it is found, had no right. The defendant subsequently sold it as owner, by virtue of his purchase from Aldrich. The defendant stands as a purchaser from a person who had no title nor any authority to sell, and he obtained no title by his purchase. The defendant’s objection, therefore, that the plaintiff did not pay the debt of Balch until after the conversion by the defendant, cannot avail. Whether the plaintiff performed his contract of guaranty at the time or not, is a matter which does not affect the defendant’s rights. He has no concern with it. Balch does not object that the plaintiff did not perform his promise, nor that he is not entitled to hold the table by virtue of the agreement between them. Whether, therefore, the original transaction be regarded as a pledge, or as a transfer of the title to the plaintiff, subject to be divested by a payment of the debt by Balch, and whether t4ho conversion by the defendant be regarded as having taken place when he purchased and sold the table, or when, upon the demand, he neglected to deliver it to the plaintiff, the action is well maintained on the evidence. The defendant had notice of the
The plaintiff' might cross-examine the defendant’s witness respecting matters material to the case, and contradict his testimony; but it is well settled that he cannot contradict his cross-examination in regard to matters which are not material. It does not appear that what Aldrich said on his cross-examination respecting his fees was material to the issue.
If the- testimony of E. P. Tibbetts related to another transaction which occurred ten years previously, it could not be considered in this case. But if the witness made a mistake in regard to the date, or the magistrate who took the deposition made a mistake in recording the testimony of the witness, that would be no ground for excluding the testimony. The facts stated might lead the court to believe, and might satisfy the jury, that the testimony related to this case, and that there was a mere mistake, either of the witness or the magistrate, in relation to the date. The instruction on that point was correct.
But the testimony of the justice before whom the case was originally tried was not competent. There was not sufficient evidence of the death of the witness, Lovering. It was merely that the witness understood that he was dead. But what is probably more important, in regard to another trial, is the fact that the witness had no sufficient recollection of the testimony of Lovering on the trial before him, and could not state that his minutes contained the substance of the whole of his testimony.
Verdict set aside.