1 Aik. 287 | Vt. | 1826
The opinion of the Court was delivered by
The ground upon which the plaintiff in error relies for reversing the judgment, is the insufficiency of the declaration, in this, that there is no consideration alleged to support the promise declared upon. The consideration upon which the plaintiff below avers the promise -to have been made, is a pre-existing debt, due from the defendant to the plaintiff and two other persons jointly, for certain lands and water-privileges, purchased of them by the defendant: the balance of debt then due, he avers to be eighty-one dollars and fourteen cents, of which he claims the one third, viz. twenty-seven dollars four cents. There is nothing in the record from which it may be determined, whether the plaintiff below relied upon an express or implied promise. The declaration is correctly framed for either, and from the view taken of the case, it is immaterial, for we believe the facts stated are not sufficient to subject the defendant, upon an undertaking express or implied. This is not a promise in consideration of forbearance, nor is it a promise in consideration of a discharge or release of the joint demand, or any part thereof. It does not appear to have been founded upon any thing beneficial to the defendant, or prejudicial to the plaintiff; and indeed there is nothing in the declaration that shows a mutual agreement of the parties, or any promise to which the plaintiff assented, or upon which he was bound to rely. There are no fads stated in this declaration that would constitute any defence to a joint action upon the joint demand ; and if a recovery could' be had in such action, surely none can be had in this. If the party was permitted here to recover the sum claimed, he must yet join the other creditors in a suit for the balance. But the ground upon which the plaintiff below principally relies in the case is, that the defect is cured by verdict. Defects merely formal are aided by verdict; and many defects which would be reached by general demurrer, are also cured by verdict. The omission of that which must necessarily be presumed to have been proved on trial, is not cause of arrest; but nothing is presumed to have been shown, but what is expressly stated in the declaration, or necessarily implied from those facts which are stated. There can be no presumption that in proving a promise, for which no consideration is alleged, that a consideration was proved, or that any other consideration was proved than that which is stated. 1 Sal. 364.
Judgment, therefore, must be reversed, &c.
