Bruguier v. Goewey

Oole, J. i. debt : payotiier Hm?" plied promise. I. The first point made is, that the verdict is not sustained by the evidence. The testimony is brief, and fr°m the jury might well find, as facts, that the plaintiff, the defendant, the bolder of the note ma(je by defendant, and one Gregory, were together in a bank; that the note was produced for payment, and Gregory asked plaintiff to pay the note, which was for $608; that plaintiff then and there paid the note, and it was handed to defendant, who, at once, handed it to plaintiff, who then gave it back to the defendant and told him to “ pay me the amount [191] of tlie note sometime; ” that payment had been demanded before suit brought. Upon these facts the jury would be authorized to conclude that the request by Gregory was in defendant’s presence, and by his silence he made it his request; and also that, by accepting the note from plaintiff with direction to pay it sometime, he promised to so pay it. Both a request and a promise can fairly be inferred from the facts of the case. This abundantly sustains the verdict. 2__. . • II.' The defendant asked the court to instruct the jury that “ if they find that the money was advanced by plaintiff without any authority from defendant, the plaintiff cannot recover.” This the court modified by adding, “ unless there was a subsequent promise to pay on the part of defendant.” Upon this the second error is assigned. There was no error in this modification. The rule is well settled that where one person voluntarily pays a debt which another was compellable to pay, be may recover the amount so paid, upon proof of an express promise by the other to repay him — the law implies the request to pay, from the express promise. Windsor v. Savage, 9 Metcalf, 348; Lewis v. Lewis, 3 Strobhart, 530. In other words, and generally, there are three classes of cases wherein an executed or past consideration will support an action: first, where one is compelled to pay a debt' for another, which such other was com p>ell able to pay; second, where the act done or money paid was for the benefit of another, and he afterwards accepted and enjoyed it; third, where one voluntarily pays a debt which another was compellable to pay. In the first two, the law implies both a request and a promise, but in the last an express promise must be shown. In this case, as we have seen, the jury might well find both a request and promise, in fact. The second instruc- ■ tion asked by defendant was substantially the same, and was modified in the same way. What we have already said sufficiently disposes of the question made upon the instruction asked by plaintiff, and given. There was no error in the manner of entering judgment. Affirmed.