White v. Snell , 26 Mass. 16 ( 1829 )

Per Curiam.

It is objected that the second count is founded on a tort, but it is in assumpsit ; for it being made to appear that Snell had no demands against Shearman, the promise would be absolute. There is, therefore, no misjoinder of the second and fourth counts, on the ground that one is in tort and the other in assumpsit.

It is further objected, that these counts are repugnant, the one averring that there were no demands against Shearman, the other that there were such demands. But no authority has been produced, to show that judgment should be arrested, after verdict, for such a repugnancy. And after a verdict has been applied to a good count, there is no reason for arresting the judgment on that ground, although the objection might have been valid upon a special demurrer. But there is not a legal repugnancy here, however there may be a repugnancy m common parlance.

The question then is, whether the fourth count is sufficient. It is said that a promise to use due diligence to collect the demands against Shearman should have been set forth, whereas it is merely alleged that due diligence was not used. But we think the contract itself imports that the testator should use due If he had power to neglect looking up those demands and thus to get rid of his contract, the law would aid him in the commission of a fraud. Negligence shows a breach of his contract; as much so as a refusal to pay the plaint if, in case the demands had been collected.¹

Motion in arrest of judgment overruled, and judgment entered according to verdict.

1 See White v. Snell, 5 Pick. 425; Blight v. Jishley, 1 Peters’s Cir. C. R. 25. ib