Barr v. Walling

Pee Curiam. We think the exceptions ought to be sustained. Admitting that the plaintiff had no pecuniary interest in defending the action of trespass brought by Page against the defendant, and was under no obligation to take the defence of it upon itself, it does not follow that it was not competent for him to do so with the defendant’s consent. If he had done so directly, and had employed the lawyer and incurred the other expenses, without the intervention of the defendant, there can be no question that an action would lie against him in behalf of the lawyer and for such expenses. Why, then, will not an action lie in favor of the defendant who, according to his testimony, was employed by the plaintiff to employ and pay for the lawyer and incur the other expense, and has done so, relying upon the plaintiff’s promise to reimburse him? We see no reason why not. The fact that the defendant derives a benefit from the expenditure is no reason: for the defend-ent had a right to forego any such benefit, and says he intended to do so but for the promise or undertaking of the plaintiff. The true question was whether he did in reality make the expenditure for the plaintiff or for himself. And this was a question of fact which ought to have been submitted to the jury. Exceptions sustained and new trial granted.