Cromelien v. Mauger

Tbe opinion of tbe court was delivered by Lowrie, J. Tbe maxim, “ expressa nooent, et non expressa non nooent," is a rule of law, because it is sound logic, and it is of very general application. When, therefore, tbe court is requested to charge tbe jury, that on the evidence tbe plaintiff can-hot recover, this request claims simply that tbe evidence presents no cause of action as between the parties, and raises no question as to tbe correspondence between the declaration and the evidence. If, then, tbe evidence of Robert Alsop is sucb that the jury might infer a valid promise by tbe defendant to tbe plaintiff to pay this debt, tbe instruction of tbe court is right, and we cannot convict of error for not expressing what was not called for. We are satisfied that tbe evidence was sufficient for that purpose. The debt was originally due to another person, but tbe note given as collateral security, was assigned to and held by tbe plaintiff, and under these circumstances tbe defendant promised to pay tbe plaintiff. This was an admission that tbe plaintiff was [173] then the proper owner of the claim. The charge of the court was therefore substantially thus: if there was a debt justly due by the defendant to a person who has assigned it to the plaintiff, and in consideration of that debt and assignment, the defendant has expressly promised to pay the plaintiff, the latter has a good cause of action. Such instruction is correct. Judgment affirmed.