Burbank v. Gould

After a continuance, for advisement, the opinion of the Court was drawn up by Westok C. J. If the plaintiff, after receiving the consideration for which he sold his land, had left a portion of it to pay the amount due on the mortgage to Wiggin, and the defendant had received it, promising to pay it over, he would have been liable upon his promise, and in proving the consideration, there would have been nothing inconsistent with the deed. Such being the arrangement, contemplated by the parties for their mutual accommodation, if they chose to consider it as done, without the formality of a payment of that portion of the purchase money to the plaintiff, to be received back again by the defendant, we are not aware that such a ceremony is required, to give legal efficacy to his stipulation. The plaintiff acknowledged in the deed the receipt of the consideration, which is not controverted by the admission of the de121 fondant, that he received a sum of money, which may have boon part of tho consideration, to be paid over to a third person. It was a deposit, appropriated for a special purpose. The defendant received it in trust, to bo applied according to its destination, by appointment between them. In principle, it is like the case of Schillinger v. McCann, cited in the argument. It is true, the promise there was in writing; but the question was open as to the consideration, which depended altogether upon parol testimony. The objection here is not in relation to the promiso, but to the consideration upon which it is based. It is urged, that it contradicts the ac-knowledgement in the deed. So it was there; but the objection was overruled, the Court being of opinion that what was there done, was equivalent to a deposit of part of the consideration money, to be applied according to the promise of the defendant. The parties did not in that case go through the ceremony of paying and repaying the money. A retainer of part of the consideration was regarded by the parties, and held by the Court, to have had the same legal effect. Nor was it necessary that tho promise should be in writing. Dearborn v. Parks, 5 Greenl. 81. In Baker v. Dewey, 1 Barn. & Cres. 704, the Court manifestly incline to the opinion, that such an arrangement might be sustained, without contradicting the receipt of tho consideration in the deed. Upon the deposit and appointment of the plaintiff, and the promise of the defendant;, we doubt not Wiggin, the mortgagee, could have maintained a personal action against the defendant for the money. The authorities cited by the defendant’s counsel, as well as the case of Dearborn v. Parks, sustain this position. It would seem also, that the plaintiff, the immediate promissee, from whom the consideration moved, may maintain an action. 1 Com. Dig. Assumpsit, E; Taylor v. Foster, Cro. Eliz. 807. Yet whore the breach is no damage to the promissee, it has been otherwise hold. Levet v. Hawes, Cro. Eliz. 619, 652 ; Rippon v. Norton, ib. 849. In the case before us, the promise was not only directly made to the plaintiff, but he was to derive a benefit ii'om its performance, as it was to pay a debt incurred by him, and for which he continued liable. But be has yet paid nothing to Wiggin, who may look to his collateral security, and not call upon him. IÍ he takes the land, and enforces payment from the defendant to redeem it, the plaintiff [122] will be relieved from his liability. Until he pays, bis damages can be only nominal. If he had paid, the defendant might be regarded as holding the money, deposited with him, to the plaintiff’s use. Upon the facts it is questionable, whether the defendant can be answerable, even for nominal damages, in this form of action. Perhaps he might upon a count properly framed. To say nothing of the interest Wiggin has in the fund and the promise made upon it, the defendant has an interest, at least as strong as that of the plaintiff, in its appropriation to the payment of the mortgage, by which his land is to be relieved from the in-cumbrance. If the plaintiff is suffered to retain his verdict, the defendant is compellable to pay, leaving his land still encumbered. The mortgagee may resort to tire land, which he must either lose, or pay the money a second time. And under the peculiar circumstances of this case, we are very clearly of opinion, that the plaintiff cannot, in any form of action, recover any thing more than nominal damages, until he pays the money to the mortgagee. The exceptions are accordingly sustained, the verdict set aside, and a new trial granted.