Smith v. Plummer

The opinion of the Court was delivered by Gibson, C. J. If the plaintiff below, apprised that the shoes were ordered by the defendants for Blake, delivered them on their credit, he would be concluded by his election; and, without more, he could not turn round to any one else. But might he not subsequently release the defendants by accepting Blake as their substitute; as he might have done had he not known him to be the actual purchaser. It is conceded, as it must be, that ignorance of Blake’s connexion with the purchase, would have authorised a pursuit of him as the actual debtor, and a consequent abandonment of the credit given to-the defendants; and there is no reason why the same result might not be effected with the assent of Blake, who is the only person that could object to a change of the original credit in any circumstances. At the plaintiff’s instance and request, he promised to pay the debt, in consideration that the plaintiff would accept him as the debtor; and this consideration would undoubtedly sustain an action on the promise. If, then, Blake became liable, the defendants were released; for that was an implied condition of Blake’s promise, which, as it did not benefit him, and would not else have prejudiced the plaintiff, would have been without consideration. What, then, is there to prevent the defendants from taking advantage of the condition 7 Nothing but an alleged want of privity. But their assent might perhaps be presumed on the principle of Smith v. The Bank of Washington, (5 Serg. & Rawle, 318.) There is another principle, however, which entitles them to the benefit of it. It was a part of the agreement — and one which has been executed — that Blake should suffer the plaintiff’s bill drawn for funds to meet this very debt, to be protested ; and would it be competent to the plaintiff afterwards to disaffirm the contract for the residue, even with Blake’s consent 7 His agreement to accept Blake as the debtor, was in discharge of the defendant’s liability; and, though made to another, yet if a consideration for it moved from them, it may entitle them to the benefit of it on the principle of Dutton v. Poole, (1 Vent. 318,) expanded by this Court in Hassinger v. Solms, (5 Serg. & Rawle, 8;) and it cannot be doubted that the injury sustained by the protest of their bill, was a consideration. In Hassinger v. Solms, a promise to indemnify the guarantor of a note who had renewed his guaranty contrary to the defendant’s direction, was held to bind him, on the ground of ratihabitio, though made to a third person; because the defendant had benefited by a payment of a part in case of his original liability — a measure which had been exacted as a condition of the renewal. Now to constitute a consideration, gain by the promissor, and loss by the promissee, are equally efficacious; and it is indisputable, not only that the defendants have lost by the [93] dishonour of their bill, but they stand in as much privity to the promissor, as the plaintiff did in Hassinger v. Solms. That the sacrifice of a party’s resources for payment, is an injury which the law regards, was determined in Harper v. Kean, (11 Serg. & Rawle, 280,) in which a sacrifice of leather put into the creditor’s hand to raise funds, was allowed to be made matter of defence; and what is there to differ that case from this ? Nothing but that the defendant’s bill was not put under the plaintiff’s control. But he assumed a control over it, and, it would seem, with their acquiescence; for though it was drawn six years ago, there was no evidence that they had taken any step to recover the amount of it from Blake, and they have released him by their defence here. In Sanderson v. Lamberian, (6 Binney, 129,) where a carrier had, without the merchant’s privity, delivered the goods to a second carrier, who had in like manner delivered them to a third, it was held that the merchant had made himself a party to the last contract of bailment by suing on it, and that he had thereby released the liability of the preceding carriers. According to that case, the defendants in this had a right to become party to the subsequent arrangement; and they released Blake when they took defence on the basis of it. The plaintiff alone could not disaffirm it; and Blake swears that he still holds himself liable to the plaintiff under it. To allow the plaintiff to recover, therefore, would be a fraud on him as a third person; which is another ground to resist the enforcement of a contract. But neither could the plaintiff and Blake together get rid of it; having dishonoured the defendants’ bill. Such an interference, were there no remedy for it at law, would be a ground to enjoin the plaintiff in equity; but equitable relief is always accessible to a defendant in an action of assumpsit; and every principle of honour and justice calls on the plaintiff to execute the residue of the agreement. Judgment reversed; and a venire de novo awarded.