Aldrich v. Lyman

Bosworth, J. This is a motion in arrest of judgment, on two grounds: 1st. That the two counts in the declaration are bad for want of a sufficient allegation of consideration; and, 2d. That if one count is good, the other is ,bad, and the damages being entire, no judgment ought to be rendered on the verdict. The first count sets out the facts, that the city of Providence proposed to purchase a lot for the site of a city hall, which lot embraced land owned ■ by the defendant, land owned by the plaintiff, and other land, the title to which was the subject of a suit between two other parties; that the city agreed to pay §75,000 for the whole, and the several owners were to adjust their several portions of this sum among themselves. One of the claimants to the lot in controversy agreed to take for his share of the gross sum, if he prevailed in the suit, $3,350; the other demanded, if the title should vest in him, $4,250. There would be, therefore, in the event of one party’s succeeding, $900 difference to be shared or paid between the plaintiff .and defendant. By the first count in the declaration it is alleged, that the defendant, in consideration that the plaintiff took the risk of paying, and agreed to pay $550 of this sum in the event that said $900 should become necessary to be paid, promised the plaintiff to pay him the sum of two hundred and fifty dollars ; and the plaintiff avers, that he did assume said risk, and did promise to pay said sum in said event, whereby the defendant became liable to pay to the. plaintiff the said sum of two hundred and fifty dollars. We think that the assuming a contingent liability, and promising to pay a definite sum, in an event which the parties contemplated might happen, is sufficient to support a concurrent *103 promise to pay an amount certain, made by the party to whose benefit the assumption of the contingent liability was to enure. The first count, in our judgment, may be supported after verdict. The second count is defective. The question then arises whether judgment can be rendered on the verdict, the damages being entire ? Both counts respect one and the same cause of action. The evidence on the trial was all applicable to the first count. The two counts are, indeed, but different modes of stating the same cause of action. A judgment in the cause, as set out in the first count, would be a conclusive bar to another action for the same claim in whatever form it might be stated. It is proper, therefore, that judgment should be rendered on the first count in the declaration. Eddowes v. Hop kins, 1 Doug. 376; Williams v. Breedon, 1 Bos. A Pul. 329; Spencer v. Goter, 1. H. Blacks. 78; Harrison v. King, 1 B. & A. 161; Barnard v. Whitney, 7 Mass. 358; Patten et al. v. Gurney et al., 17 Ib. 182, 187; Clark v. Lamb, 6 Pick. 512, 516; Jones v. Kennedy, 11 Ib. 125, 131; 1 Chit. Plead. 411, 12th Am. ed. and notes; Gould’s Plead, ch. 10, §§ 58, 60, 61, p. 523, n. 7. The motion therefore, is denied.