Marshall v. Cobleigh

Gilchrist, J. One of the exceptions to the verdict is, that no consideration for the promise is proved. The defendant, Cobleigh, claiming to own a tract of land, sent his servants, Elliott and Killam, to cut the timber upon it, and Josiah Bellows, 2d, claiming also to own it, brought his action of trespass against the servants, and caused them to be arrested. "While they were under arrest the defendant made the contract upon which this action is brought, and the plaintiffs bailed his servants. The contract distinctly states the consideration and the promise founded upon it. The consideration is the undertaking of the plaintiff's as the bail of the defendant’s servants. The promise is that of the defendant to indemnify them for so undertaking. It is said that the consideration is not sufficient, because it is past and executed. But the contract does not show that it was a past and executed consideration, and the case shows that it was a concurrent one. There is no analogy between this and the case cited in the 15th page of Chitty on Contracts, from the old authorities. There was a bailing of servants in both cases, and a promise of indemnity; but in one the bailing was assumed without the knowledge or request of the master, while in the other the concurrence of the acts raises a presumption of a request, or dispenses altogether with the necessity of proving one. The doctrine of the ease from Chitty is, that the bailing of a servant, with the subsequent approval of the master, is not, like the delivery of goods, or the performance of a work for one who afterwards accepts the goods, or avails himself voluntarily of the benefits of the labor so clearly for the advantage of the master, as to raise a legal presumption of a prior request. It did not appear that the servant was arrested for an-act which he did at the special request and command of the master, or that the master adopted it as his own, and assumed, upon the ground of [492] right and title in himself, the defence of the suit in which the servant was arrested. These features very broadly distinguish the present case, and, if others of a decisive character were not to be found, would deserve consideration. That the consideration is sufficiently stated in the contract, there seems to be good reason to conclude from the authorities. Under the fourth section of the statute of frauds, it being necessary that the consideration should appear in the writing required by the statute, it is a rule that if the consideration can be collected, or fairly inferred from the defendant’s memorandum, it is sufficient. Chitty on Contracts 210. The case of Stadt v. Lili, 9 East 348, is cited among others, in which it was held that the words, “I guarantee the payment of any goods which J. Stadt delivered to J. Nichols,” contained a sufficient description of the consideration. The contract contains an acknowledgment that a value had been received by the defendant, which formed the consideration upon which the promise was founded. This has, in a variety of written contracts, been adjudged to be primd facie evidence that there was a valid consideration. In Jerome v. Whitney, 7 Johns. 321, cited by the plaintiff’s counsel, it was held to be sufficient to state and to prove, in an action upon a note for specific articles, that the promise was “ for value received.” The same point was adjudged in Odiorne v. Odiorne, in our own court. 5 N. H. Rep. 315. In Whitney v. Steams, 16 Me. 394, to which also we have been referred by the plaintiffs’ brief, the same words were held to be primd fade evidence of a consideration for a promise to pay what the promisee should recover in certain legal proceedings, described in the memorandum. [493] This promise was within the statute of frauds, and it became material therefore to determine whether the words sufficiently proved a consideration. The court in that case say, “ If a man will deliberately say that he has received a consideration for his promise, the burden ought surely to rest on him to show that he was under a mistake. The case before us does not render it necessary that we should adopt, in its full extent, the doctrine of that ease, nor is it necessary to call it in question. But the contract, having stated a consideration in the plaintiffs’ undertaking as bail of the servants of the defendant, against the sufficiency of which it is alleged that it was not presumptively for the benefit of the defendant, and does not appear to have been assumed at his express request, there certainly is some force in the admission of the defendant that he had received, in some form, a valuable consideration ; and that admission may justify us in presuming that the undertaking of the plaintiffs was of value to him, and assumed under such circumstances of special request, or otherwise, that the law presumes a benefit to the party promising to pay for it. We are, therefore, of the opinion, with the court below, that from the paper itself, and the circumstances proved, the jury were authorized to find that there was a good consideration, without other evidence of a prior request on the part of Cobleigh that the plaintiff’s would bail his servants. A judgment having been recovered against the plaintiffs upon scire facias, they became entitled to bring this action against the defendant upon his promise of indemnity, whether they had actually paid any thing upon the judgment or not. Fish v. Dana, 10 Mass. 46; Broughton’s Case, 5 Coke 24. That right is not impaired by the subsequent proceedings. They procured Charles Bellows to indemnify them [494] against the judgment, and for that they assigned to him this cause of action against the defendant. •The verdict negatives the collusion surmised to have existed between the parties, so that even if they have mistaken their rights, and the effect of the assignment to Charles Bellows, and the supposed agreement'of Josiah Bellows- to take a smaller sum in payment of the note of Charles than is due upon the face of it, there seems to be nothing in the way of maintaining the action upon the ground that the plaintiffs are liable upon a judgment in a matter against which the defendant has promised to indemnify them. In the absence of fraud and conspiracy to hurt the defendant, he is not entitled to inquire upon what consideration his contract of indemnity has been assigned to another. Barrett v. Barron, 13 N. H. Rep. 150. Nor does it concern him if Josiah Bellows, 2d, has actually become the party in interest, by having agreed to take what may be collected in this suit, to save cir-» cuity of remedy, or for any other cause, not objectionable for fraud or collusion. We are unable to see just ground of exception to the instruction of the court of common pleas in this particular. There must, consequently, be Judgment on the verdict.