Buntain v. Dutton

Breese, J. The idea seems to be entertained by the appellant’s counsel, that the promise on the part of Davis, the agent of the plaintiff, Dutton, to adjust fast gearing to the reaping machine, was a new and independent contract, superseding the' original contract, and that as he did not so adjust it, he has no right to recover on the note. It should be borne in mind that this promise of the agent was wholly gratuitous, without any consideration whatever, and in no sense binding—it was, nudum, pactum. It is proved conclusively by the testimony of Fergus M. Blair, who was introduced by the defendant, the dppellant, that at the time he purchased the machine, he himself, as the agent of the plaintiff, sold it to him, and that the defendant had it in his possession nearly a year before he bought it—that he did not warrant it, and sold it for less than the price on account of its being out of order and having been used—the regular price was $200 on time, or $180 cash, and witness agreed to take $165 at eight months for it—and that in consideration of the credit and the reduced price, he would not warrant it, and the defendant expressly agreed to take it at his own risk. The voluntary promise of the plaintiff to fix the machine, which he was under no obligations whatever to make, cannot be tortured into a new contract of such efficacy as to prevent a recovery upon the note. That contract is in full force, and the defendant all the time owed the debt, and was bound to pay it. The judgment is affirmed. Judgment affirmed.