Mason v. Munger — 5 Hill & Den. 613

Majority

p. 613

Mason vs. Munger.

Headnote

Where M. purchased goods of W., agreeing with him and J. to pay a debt due J. from W.; held, that J. cbuld not recover against M. under the common counts, but must declare specially.

Assumpsit, tried at the New-York circuit in May, 1843, before Kent, C. Judge. The declaration contained the common counts for money lent and money had and received; and the case proved at the trial was substantially as follows: ■

In 1841, one Lewis L. Williams borrowed of James Mason^ the plaintiff, the sum of $3500,. for which Williams gave his notes and a bond and warrant of attorney to confess judgment. Williams "was á merchant in the city of New-York, and the plaintiff resided in Ohio. . On or" about the first of April, 1842, the defendant bought out Williams’ stock of goods. In consideration of the purchase the defendant gave his note to Williams • for $621, and was to discharge the debt due from Williams to the plaintiff. The latter was not present, but John L. Mason acted "in - his behalf arid agreed to the above arrangement. A bill of the goods was made out which Williams receipted, and the notes executed by him to the plaintiff, being in the possession of John L. Mason, were delivered up'to be cancelled. The bond and warrant were not thought of at the time, as Williams testified, and therefore nothing was said or done in relation to them. As security for the money due the plaintiff, the defendant delivered to John L. Mason various notes against one Seaman; .and these, not having been paid at maturity, the present action was brought. The circuit judge ordered a nonsuit, on the " ground that the plaintiff, if he could recover at all, must declare specially. A motion for a", new trial was now made on a case.

S. Stevens, for the plaintiff,

insisted that the declaration was sufficient to, entitle the plaintiff to recover. The defendant received the .amount of.the plaintiff's debt in "goods, expressly promising to pay it; and this is equivalent to the receipt of mo

p. 614

ney to the use of the plaintiff. (Gregory v. Mack, 3 Hill, 380 .) The case, moreover, is in substance the same as if Williams had paid the debt to John L. Mason in money, and he had afterwards, as the plaintiff’s agent, loaned the money to the defendant.

N. Hill Jun., for the defendant,

said the goods of Williams were sold by him in the ordinary way, and not delivered to the defendant in trust to be appropriated to the payment of the debt due the plaintiff. There is no fact or feature in the case on which an implied promise can be raised as between these parties. On the contrary, the privity between them rests entirely upon the special promise of the defendant to pay; the plaintiff being an utter stranger to the consideration. Under such circumstances the common counts are inappropriate and of no avail. (1 Saund. Pl. and Ev. 137; 2 Phill. Ev. 108, 7th Lond. ed.; Linningdale v. Livingston, 10 Johns. Rep. 36 , 7; Tuttle v. Mayo, 7 id. 132 ; Miller v. Watson, 4 Wend. 276 .) Again, the undertaking proved was to pay the plaintiff a debt due from Williams; and it has been repeatedly laid down in reference to cases of this character that the declaration must be special. (Quin v. Hanford, 1 Hill, 82 ; Beers v. Culver, id. 589.)

The utmost that can be made of this case for the plaintiff is a loan of money by him to Williams ; then a sale by Williams of his stock in trade to the defendant, at his request, and a promise by the defendant, in consideration of such sale, to pay the debt due by Williams to the plaintiff. The promise was made to John L. Mason as the actual or assumed agent of the plaintiff, and Williams’ notes for the money were surrendered. His bond and warrant for the same sum remained, though perhaps they were in effect discharged. The goods were not transferred to the defendant in trust, to be specifically appropriated to the payment of Williams’ debt, either by way of delivering them to the plaintiff, or selling them and paying over the proceeds to him. In either of the

p. 615

latter cases, the defendant having actually sold and received the proceeds, would have been chargeable in an action for money had and received to the plaintiff’s use. (Camp v. Tompkins, 9 Conn. Rep. 545 , 553, and the cases there cited; Owing's ex'rs v. Owing, 1 Har. & Gill, 484, 491; Neilson v. Blight, 1 John. Cas. 205; Jackson v. Mayo, 11 Mass. Rep. 147 ,152.) A case for such an action, however, is scarcely pretended. It is said to have been a loan of money by the plaintiff to the defendant. But I do not see it in that light. It was a shifting of Williams’ debt, from him to the defendant. There may be a question on the statute of frauds; but that will depend on another question, viz. whether Williams was entirely discharged; and perhaps on other considerations not in the case, which went off on the variance between the declaration and evidence. The judge held that a general count for money lent was inapplicable. We think he was right. In Bell v. Chaplain, (Hardr. 321,) it is said that where a promise is made to the father for the benefit of the son, the latter bringing the action must declare specially on the promise made to the father. I do not see that it would make any difference though the defendant in such case actually promise the person for whose benefit the contract is made. Where the promise is collateral, to pay the debt of a third person, it is necessary, as was supposed by Mr. Justice Bronson in Quin v. Hanford, ( 1 Hill, 82 , 86,) and as I understand the law clearly to be, that the declaration should always be special. Again, in Beers v. Culver, (id. 589, 590,) the defendant, in consideration that the plaintiff would deliver him a note against one Bradley, promised to pay the plaintiff what Bradley owed him. Mr. Justice Bronson again said: “ The plaintiff was seeking to recover on a special contract to pay the debt of Bradley, and he should have counted specially on the promise.” Now it is by no means certain that this case is any thing more than that. It is quite doubtful whether Williams’ obligation did not remain; for, though his notes were given up, the bond and warrant against him were not formally discharged. But admitting that they were, I do not see how the case would be

p. 616

covered by any of. the money, counts. 'The consideration is the . discharge of Williams and the sale of goods by him- to .the dé-' fendant. '

New. trial denied.^[1]

(a) (a) A somewhat similar decision was made at this term in the case of Jones, v. Hawks and another. The. declaration contained the common counts in assumpsit and, at the trial,, the plaintiff proposed to prove, in efibct, that he sold certain scraps for making glue to one Reed on a credit '; that Reed, having- failed, sold them to the defendants, .who promised him that they Would pay the plaintiff. The defendants’ counsel objected that general indebitatus assumpsit would' not lie, but. that the plaintiff should have declared specially ; and the circuit judge,'being.of that opinion, excluded'the evidence and nonsuited the plaintiff, who moved for a new trial on a case; The motion wag argued by D. Cady, for the plaintiff, and E. D. Smith, for the defendants. The Court said, the objections taken at the trial were fatal, and the' plaintiff properly nonsuited. The declaration should have been special. (Mason v‘._Manger, in the text.) - ' ' . • . ... New trial denied.