Snyder v. Leibengood

Bell, J. It is conceded that the written engagement of the plaintiff in error, dated May 4, 1843, cannot be considered orltreated as a statutory recognisance. Since the decisions of the court cited on the argument, the propriety of this concessioncannot be questioned. B.ut admitting this, the court below decided that the engagement enured to the benefit of the plaintiff below, as a common law obligation, and, taking the case out of the hands of the jury, instructed them that, on the undisputed facts, he was entitled to recover. In this, we think, there was error. So. far as this case is exhibited by the record .returned, there is no other consideration upon which the offer of Thomas Snyder can be supported as a contract than a supposed agreement by Leibengood to forbear execution for nine months from the rendition of the judgment against Charles Snyder. There-was no express undertaking to this effect, and, therefore, it could only be established by an implication flowing from proof that Leibengood knew of, and acceded to, the engagement of Snyder. In the absence of such acceptance, implying assent, there was nothing in the case to prevent Leibengood from causing execution to be issued at any time within the nine months, and if he was at liberty so to do, of course the proffered engagement-, now sought to be enforced as a contract in pais, was nudum pactum. Rhoads v. Frederick, 8 Watts, 448; Todd v. Blair, stated in 3 Penna. Rep. 440; If this engagement had been made directly with Liebengood, there would, perhaps, have been no room for this objection. But -there is no direct proof that he knew of it, or in any way held himself bound by it, and it is a mistake to suppose that in a case like this, the law will presume adquiescence on the part of the judgment ere-' ditor. The facts, that no execution was issued within the nine months, and that the plaintiff below was possessed of, and sues upon the paper, are not by. any means conclusive, as the court be-, low seemed to think they are, of the question whether Leibengood had forborne at Snyder’s instance, or accepted his proposal. Clark v. Russel, 3 Watts, 213. At best, they are but circumstances in connection with other facts, to show his' assent to and acceptance of Snyder’s undertaking, which ought to have been left to the jury, 308 with instructions that they must be satisfied of such acceptance and assent, and a consequent forbearance to sue out execution, otherwise the plaintiff was not entitled to recover. Koons v. Seward, 8 Watts, 388. But the court assumed this moot point to be conclusively established, and, upon this assumption, peremptorily instructed the jury. In this, as already intimated, an error was committed. But again, as the case is presented to us by the record, another difficulty stands in the way of the plaintiff’s right to recover. The rule laid down by rPothier, and recognised by this court, in Case v. Cushman, 3 Watts & Serg. 546, is, that however general the terms may be in which an agreement is conceived, it only comprehends those things in respect of which it appears the contracting parties proposed to contract, and not others they never thought of. If, in this case, there was a contract, it must be taken as made in reference to the existing law, prescribing the condition of a recognisance of bail for stay of execution, sur judgment rendered by a justice of peace, for the legal presumption is, the parties were acquainted with, and contracted in reference to the statutory provision. The engagement of Thomas Snyder is: “I will go Charles Snyder’s security for nine months’ stay of execution in the suit wherein Samuel Leibengood is plaintiff.” What is this more than an undertaking, based upon the act of Assembly, regulating such bail or security, and dictating its terms. It seems to me to be impossible, without a gross violation of the meaning of the language used, to torture it into a promise to pay the amount of the judgment, at the expiration of nine months, if the defendant did not. Even if the phraseology employed were more vague and general, it would only comprehend the thing in respect to which the parties proposed to contract, and if referable to a statutory recognisance, as it clearly is in this instance, would be controlled by the prescribed terms of that recognisance. By the thirty-third section of the act of July 12th, 1842, (P. L. j>. 347,) these terms are, that no part of the property of the defendant, liable to be taken in execution by the plaintiff, shall be removed, &c., until the plaintiff’s demand shall be satisfied, or until the expiration of ten days after such plaintiff shall be entitled to have an execution issued on the judgment. Such must beyond question be taken as the condition of the agreement, upon which the plaintiff below claims to recover; for the form of the security exacted by the law being in the view of the promissor, must be taken as part of his agreement. If this be so, it was incumbent on the plaintiff below tó show by proof that within ten days after the expiration of the stay stipulated for, 309 the defendant in the original judgment in some way disposed of property liable to the execution of the plaintiff. The only evidence given in the cause, to establish this important fact, was the execution issued by Justice Brotzman on the 8th of February, 1844, and the constable’s return thereon, of “ no property found.” But the judgment against Thomas Snydfer was rendered on the 21st of April, 1843, and, consequently, the execution did not issue until some time after the expiration of the ten days allowed by the terms of the agreement. From this it is obvious the return made upon it .cannot be accepted as competent proof in itself to show that the original defendant had made way with his chattels liable to execution, within the period limited by the statute. On this ground, therefore, as his case now stands, the plaintiff ought not to recover. This defect in his proof, it is probable, may be remedied on another trial. It is now noticed in order that the whole case may, qh the next occasion, be considered, and, as it is hoped, finally disposed of. ' Judgment reversed, and a venúe de novo awarded.