Greenleaf v. Burbank

Parker, C. J. The declaration sets forth divers facts, and the plaintiffs ask,to sustain their suit upon several different grounds. It may, perhaps, facilitate our investigations, to enquire, in the first place, what is the gravamen of the action. The declaration states that the defendant and one E. G. Eastman, now deceased, were, on the first of April, 1837, jointly indebted to the plaintiffs in the sum of $25, for goods before that time delivered to them, they being partners, and the goods having been delivered on account of and for the benefit of the firm. But it does not allege that in consideration of that indebtedness they promised to pay, nor attempt to charge them upon the account, or for goods sold. On the contrary, it proceeds to aver that on the fifth of May, 1837, they received the note of Eastman for the goods, and discharged and settled the account against the firm. It is not alleged that Eastman gave a partnership note in his own name, or that the note was the note of the defendant, or contained his promise, or was intended to bind him. The gravamen, then, is not that this was the note of the defendant, and that he has neglected to perform the promise contained in it. So far as the facts upon this part of the case are set forth, it appears that the sole note of Eastman was received in payment and discharge of the debt of the firm; and, if so, the previous liability of the defendant upon the account was thereby terminated. The plaintiffs might settle the account, receiving Eastman’s note in payment, if they saw fit, and thereby discharge the defendant, [458] The declaration then alleges, that on the first of December, 1837, Eastman died, and the plaintiffs presented Eastman’s note to the defendant, as surviving partner, and the defendant promised to pay the same, which he has neglected to do. The allegation that it was presented to him as surviving partner, does not imply that it was a partnership note. It is described in the same sentence as Eastman’s note. The action then is founded upon a promise of the defendant to pay the note of Eastman, which is alleged, substantially, to be the debt of Eastman, and which may well have been his debt, notwithstanding it had its origin in a debt for the payment of which the defendant was once liable as a partner. In this view of the case, there can be no question that the plaintiffs cannot sustain their action. There is no sufficient consideration for this promise of the defendant, moral or legal. The fact that the defendant was formerly liable, constituted no moral reason why he should pay, if the plaintiffs had received the sole note of Eastman in payment and discharge of the account. And Eastman’s subsequent decease would not make the case any stronger in this respect. The case as stated in the declaration is clearly within the statute of frauds, notwithstanding the averment respecting the origin of the debt. It has been argued that the plaintiffs forbore to present the note as a claim against the estate of Eastman, in consequence of the promise of the defendant to pay it. But nothing of that is stated in the declaration, nor would it have availed had the declaration proceeded to state, as a part of the history of the case, that after the defendant- promised to pay the note the plaintiffs forbore to present it as a claim against Eastman’s estate. Had the declaration alleged that the defendant, in consideration that the plaintiffs would forbear to collect the debt of Eastman’s estate, promised to pay, with an averment of actual forbearance, it would have presented a different cause of action; but there is no evidence stated which would have sustained it. [459] According to the agreement under which the verdict was taken, it must be set aside. But as there is some evidence tending to show that the note of Eastman was not in fact received as payment, and that the defendant may either be liable on the account, upon the ground that the note was not agreed to be so received, (10 N. H. Rep. 505, Jaffrey vs. Cornish; 15 Wend. R. 498, Rathbone vs. Tucker,) or that the note may be treated as a partnership note, notwithstanding it is subscribed with the name of Eastman alone ; instead of rendering judgment for the defendant, the plaintiffs may have leave to amend their declaration, if they believe they can make a better case. 10 N. H. Rep. 499, Alexander vs. Pierre. Verdict set aside, and leave to amend.