Tuttle v. Love — 7 Johns. 470

Majority

p. 470

Tuttle against Love.

ALBANY,

Feb. 1811.

Headnote

4s~umpsit lies agal n~t fl deputysherilt, upon an exp1~ss ~)iornlse to - money coHe~té(1 by him On au execution, to the pIahitif1~

But the plaintiff must prove a clear and absolute promise. It is not sufficient that the deputy sheritI said "that he wouI~ pay the amount of the judgment, but not the costs of entering a rule for an attachment," ,b~ other. If ono n~n'f.v does not accede to

If one party does not aceede to promise, as made, the other party is not bound by it. 5 party is not bound by it.

THIS was an action of assumpsit. The declaration contained four counts. The fourth count was on a spe~ cial undertaking of the defendant; and st~ted that the defendant being a deputy of the sheriff of P//ad~son county, and in the practice of receiving executions, and

p. 471

Collecting the money thereon, without any particular direction or control of the sheriff, on the 1st of December, 1809, an execution on a judgment in favour of the plaintiff against one 3£orris, for 200 dollars, was delivered to the defendant, as deputy sheriff, at his special instance and request, and that he afterwards collected and received the money, and was requested to pay it to the plaintiff; whereby the defendant became liable to pay, &c. and being so liable, he undertook and promised to pay, &c. Plea non assumpsit.

The cause was tried at the Madison circuit, in 3iay, 1810, before the Chief Justice.

At the trial it was admitted, that the defendant, as deputy sheriff, received of the plaintiff an execution in his favour against Morris, for 53 dollars and 5 cents. It was proved, that in January, 1810, the defendant said he had not then collected the money on the execution, but expected soon to receive it, and promised to send it to the plaintiff as soon as it was collected; that after-wards, about the 1st of February, the defendant received the money of 3£orris; and the clerk of the plaintiff’s attorney called on the defendant, and exhibited a bill of the costs of entering a rule for an attachment against the sheriff, but the writ had not been taken out; and the defendant offered to pay the amount of the judgment, but refused to pay the costs of the rule. The clerk declined receiving the money, unless the costs were also paid; and the defendant said he would call and see the plaintiff’s attorney in a few days.

A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the above facts.

A motion was also made in arrest of judgment, on the ground that assumpsit will not lie against a deputy sheriff, on a special promise to pay money collected on an execution.

p. 472

The cause was submitted to the court without argumeat.

Two motions were submitted to the court upon this case ; the one in arrest of judgment, and the other for judgment for the defendant, upon the facts ■sated in the case.

1. The fourth count is upon a special contract made by the defendant, promising to pay the money which he had collected for the plaintiff, upon request, and after he had received the money. Such an express promise, founded upon the receipt of the money, may be good. A deputy sheriff, as well as any other agent, may make himself personally responsible by a special, undertaking, The general rule is laid down in Cameron v. Reynolds, (Cowp. 403.) that an action will not lie against an under sheriff for a breach of duty in his office. It is the special promise founded upon the collection of the money, that is the ground of this action, and on that ground it may be sustained. But,

2. The evidence did not support the count. There ought to be a clear,.absolute promise made out. Here, the only evidence of the undertaking was, that the defendant said “he would pay the amount of the judgment, but would not pay the costs of the rule,” and the agent of the plaintiff would not accept of the one without the other. The promise, upon the terms offered, .not being accepted, ceased to operate. If one party does not accede to the promise, the other party is not bound. What the defendant afterwards said, “ that he would come and see Mr. Randall (the attorney for the plaintiff) in a few days,” amounted to nothing. And as the verdict was taken subject to the opinion of the court, there must be judgment for the defendant.

Judgment.for the defendant.