Majority
p. 442Phetteplace against Steere.
Headnote
a promise to pay damages for the detention of a certain sum of money, beyond the amount detained, is a nudum pactum. If part of a promise, laid in a declaration, be for a good consideration and valid, and another par. be without con. sideration,the court will in. tend, after verdict, that the jury assessed damages on that part which was good.From the return of the writ of error in this cause, directed to the court of common pleas for the county of Chenango, it. appeared, that the declaration in the court below contained three counts. 1. For money had and received to the plaintiff’s use; 2. For money paid, &e. to the use of the defendant; 3. That Steere, the plaintiff below, having given a bond for 1,250 dollars, to one Maitby Phetteplace, executed a bond for the same sum without interest, to Maitby, as collateral security; that to indemnify the piaxntiffinerror, the defendant gave him a counter bond for the same amount, and a warrant of attorney to confess judgment thereon; that the plaintiff in error, before paying any part of the bond which he executed to Maitby, entered up judgment upon the bond, given to him for his indemnity, took out execution, caused the property of the defendant tobe sold, to the amount of 251 dollars, over and above the 1,250 dollars, for which he was liable, “ whereby he became liable to refund to the plaintiff (below) the said sum of 251 dollars, together with damages for the unjust proceeding, and being so liable, he promised to pay to the said plaintiff, the said sum of 251 dollars, so unjustly collected and detained, &c. and also, that he would pay to the said plaintiff such further
p. 443
sum, in addition, to compensate the said plaintiff, for the damages which he sustained by reason,&c. as he thercfore reasonably desei vcd to have for the same,” &c. rp¡,je defendant pleaded non-assumpsit; and on the trial 0f t[le cause, the jury found a verdict for the plaintiff, for the sum of235 dollars and 73 cents.
There was an assignment of errors, and joinder.
delivered the opiniou of the court. This case has been submitted to the court without argument. The only error pointed out is in the third count in the declaration, which alleges, that the plaintiff in error promised to pay damages beyond the surplus money in his hands, arising from the sale of the property of the defendant in error. We are of opinion, that the promise, as to the damages, was without consideration; but that it was good as to the surplus money. On the authority of the case of Steele v. Western Inland Lock Navigation Company,[1] we intend, that on the trial of the cause, the jury did not assess damages on that part of the promise which was a nudum,pactum. The judgment below must be affirmed.
Judgment affirmed.
* ante, 283.