Blodget v. Skinner

The opinion of the court was delivered by Hebard, J. The fifs't cause of demurrer, assigned by the defendant is, that the declaration sets up and counts upon a different cause of action, from the one in the original writ. The right to file a new declaration is regulated by a rule of court; and when the declaration, so filed, is, in itself, good, and sets forth a good cause of action, if it is inconsistent with the original cause of action, objection, in proper time, should be made to receiving it, or it should be met by a motion to dismiss ,• and if no such motion or objection is made, the question of variance will be understood as being waived, like an informal plea. Another cause of demurrer, set down by defendant, is, that “ the promise alleged in the declaration is founded only upon an executed consideration, and that it is not alleged therein that the defendant requested the plaintiff to be permitted to use his name in said suit.” The objection is also taken in argument, that the action should have been case and not assumpsit. But in relation to this, there is no occasion to inquire. We are trying the legal points in the declaration, and have no opportunity of knowing whether the proof would have sustained the allegations. If it is true, as alleged, that the defendant, without leave, and without right, made use of plaintiff’s name in said suit, by which he became subjected to the payment of a bill of cost, there could be no doubt, that the defendant would be under a moral, if not a legal obligation to indemnify him ; and either is a sufficient consideration for a promise. The declaration alleges that, in consideration of the premises, the defendant promised to pay and save harmless the plaintiff from all harm and liability on said execution. There is a direct and sufficient promise alleged, founded upon a good and sufficient consideration. Judgment of county court affirmed.