Devecmon v. Shaw

Bryan, J., delivered the opinion of the Court. John Semmes Devecmon brought suit against the executors of John S. Combs, deceased. He declared in the common counts, and also filed'a bill of particulars. After judgment by default, a jury was sworn to assess the damages sustained by the plaintiff. The evidence consisted of certain accounts taken from the books of the deceased, and testimony that the plaintiff was a nephew of the deceased, and lived for several years in his family, and was in his service as clerk for several years. The plaintiff then made an offer of testimony, which is thus stated in the bill of excejffions: “That the plaintiff took a trip to Europe in 1878, and that said trip was taken by said plaintiff, and the money spent oh said trip was spent by the said plaintiff [201] at the instance and request of said Combs, and upon a promise from him that he would reimburse and repay to the plaintiff all money expended hy him in said trip ; and that the trip was so taken and the money so expended hy the said plaintiff, hut that the said trip had no connection with the business of said Combs ; and that said Combs spoke to the witness of his conduct in h'eing thus willing to pay his nephew’s expenses as' liberal and generous on liis part.” On objection, the Court refused to permit the evidence to be given, and tbe plaintiff excepted. It might very well be, and probably was the case, that tlie plaintiff would not have taken a trip to Europe at his own expense. But whether this he so or not, the testimony would have tended to show that the plaintiff incurred expense at the instance and request of the deceased, and upon an express promise by him that be would repay the money spent. It was a burden incurred at the request of the other party, and was certainly a sufficient consideration for a promise to pay. Great injury might he done by inducing persons to make expenditures beyond tlieir means, on express promise of repayment, if the law were otherwise. It is an entirely different case from a promise to make another a present; or render him a gratuitous service. It is nothing to the pun-pose, that the pdaintiff was benefited hy the expenditure of his own money. He was induced by this piromise to spiend it in this way, instead of some other mode. If it is not fulfilled, the expenditure will have been procured hy a false pireteuce. As the pilaintiff, on the theory of this evidence, had fulfilled his part of the contract, and nothing remained to be done but the piaymont of the money hy the defendant, there could be a recovery in indebitatus assumpsit; and if was not necessary to declare on the [202] special contract. The fifth count in the declaration is for “ money paid hy the plaintiff for the defendants’ testator in his life-time, at his request.” In the bill of particulars, we find this item: “To cash contributed by me, J. Semmes Devecmon, out of my own money, to defray my expenses to Europe and return, the said John .S. Oomhs, now deceased, having promised me in 1878 ‘ that if I would contribute part of my own money towards the trip, he would give me a part of his, and would make up to me my part,’ and the amount below named is my contribution, as follows, etc.” It seems to us that this statement is a sufficient description of a cause of action covered by the general terms of the fifth count. The evidence ought to have been admitted. (Decided 13th of June, 1888.) The defendants offered the following prayer, which the Court granted: “The defendants, by their attorneys, pray the Court to instruct the jury, that there is no' sufficient evidence in this case to entitle the plaintiff" to recover the interest claimed in the bill of particulars, marked, ‘ Exhibit No. 1, Bill of Particulars.’” The only evidence bearing on this question is the account taken from the books of the deceased, which was offered in evidence by the plaintiff. This account showed on its face a final settlement of all matters embraced in it. In the absence-of proof showing errors of some kind, the parties must be concluded by it in all respects. We think the prayer was properly granted. Judgment reversed, and neto trial ordered.