Waldo v. Simonson

Graves J. Assuming that the defendant in error was damnified by forbearing to attach the wool, and that the promise to pay him, imputed to plaintiff in error, was, ujoon sufficient consideration — a view which is essential to the theory of the former — still that promise was, on such theory, one to pay Wolcott’s debt, and within the statute. According to the construction put upon the transaction by the defendant in error, Wolcott was indebted to him in so much of the proceeds of the endorsement of the forged draft as went into the wool, and it was this debt which the plaintiff in error undertook to pay. Admitting that it is shown by the circumstances that such debt was created, and the defendant in error was legally entitled, before the promise, to seize the wool by attachment against Wolcott for the debt, nevertheless the supposed debt subsisted in as ample a manner after the alleged promise as before. It was neither paid, discharged, nor extinguished. The liability of Wolcott was unaltered, and the defendant in error obtained only the additional assurance of plaintiff in error. , By the charge, the jury were left to find for the defendant in error, upon the promise founded on forbearance to attach, in case they should find that such forbearance was [354] beneficial to the plaintiff in error, and this, I think, was, incorrect. There seems to have been no investigation by the court or jury of the right of defendant in error, on the facts, to recover, under the count for money had and received, any portion of the proceeds of the wool sold on the execution, in favor of plaintiffs in error; and we forbear discussing that subject. I think the judgment of the Circuit Court should be reversed, with costs, and a new trial ordered. The other Justices concurred.