Fox v. Walker , 62 N.H. 419 ( 1882 )

By the terms of the agreement, Walker obligated himself to pay the plaintiff $56 upon the receipt by Walker of the funds of Hambleton in the hands of the Arlington Mills then held by Walker's writ against Hambleton and the Arlington Mills as trustees. In order to recover, it was necessary for the plaintiff to show what the funds were, and that the defendant had received, not a part, but the whole of them. It must be taken, upon the facts stated, that at the time of the agreement the Arlington Mills Were indebted to Hambleton in the sum of $91 at least, their objection to paying the order being not that they did not owe Hambleton so much, but that other parties had caused trustee process to be served upon them. The sum of $91 constituted the funds mentioned, and was held by Walker's writ, within the meaning of the contract. By his attachment of the funds, he had acquired a lien upon them. It is immaterial that others had also attached them, or that his attachment must ultimately have failed or been dissolved for any cause, as if, for example, the funds were exempt from attachment. If the defendant had agreed to pay the plaintiff a specified sum upon receipt of a good title to the horses held by attachment on his writ against Hambleton, and it appeared that three horses were attached, the fact that one of them was held upon a prior attachment, was exempt, or that for any reason no title to it could be given, would not render him liable upon the receipt of a title to two horses.

Evidence of the state of the account between Walker and Hambleton was properly excluded.

Exceptions overruled.

STANLEY, J., did not sit: the others concurred.