Williams v. Wieting

Gilbert, J. The facts proved by the defendant constitute a good counter-claim. 2 Wait’s Pr. 431. Although it does not appear that the plaintiff was benefited by the sale of the horses, yet they were purchased by the defendant on the faith of his promise that if they were not as he represented he would be responsible. The risk incurred by the defendant in paying the price of the horses was a sufficient consideration for the defendant’s promise. It is not necessary in such a case that a benefit to the promisor should appear. It is sufficient that a risk is incurred by the promisee, and that the promise is the inducement to the transaction. Sands v. Crooke, 46 N. Y. 564; Chit, on Cont. (11th Am. ed.) 28. The counter-claim was not well pleaded. But the objection of the plaintiff was not put upon that ground. If it had been, no doubt the justice would have ordered an amendment. No injustice can be done by treating the pleading as having been amended. Bate v. Graham, 11 N. Y. 237. The plaintiff cannot complain that the judgment against him is too small. Judgment affirmed, with costs.