Johnson v. Greenough , 33 N.H. 396 ( 1856 )

Sawyer, J.^*

It is very clear that the second count is defective. The allegation is that the defendant, on a certain day, was indebted, and after, promised to pay. This subsequent promise is upon a past consideration, and, unless the consideration be of such character that of itself it imports a previous request, it is not sufficient to sustain a promise, without an allegation that it was moved at the instance and request of the defendant. The consideration here set out is, in general terms, an indebtedness for the balance of accounts, without a specification of any item of the account on either side. The doctrine that a precedent debt or promise from one party cannot of itself form a sufficient consideration for a promise by the other, is sustained by numerous authorities, ancient and modern, English and American. Hopkins v. Logan, 5 M. & W. 241; Kaye v. Dutton, 7 M. & G. 807; Victors v. Davies, 12 M. & W. 758; Beaumont v. Reeve, 8 Queen’s Bench 483, 55 En. C. L. R.; Eastwood v. Kenyon, 11 Ad. & El. 438; Vadakin v. Soper, 1 Aik. 287; Russell v. Buck, 11 Vt. 176; Barker v. Bucklin, 2 Den. 59; Comstock v. Smith, 7 Johns. 88; Dearborn v. Bowman, 3 Metcalf 155.

The principle to be extracted from the cases is, that when the consideration is executed, an express promise, without an express previous request, can in no case furnish a cause of action ; and when it is preceded by an express previous request, then only where the law implies no other promise.

In Hunt v. Bate, Dyer 272, the servant of the defendant was arrested, and released upon the plaintiff’s becoming his bail. This was done by the plaintiff as an act of friendship for the master, and without his request. Afterwai’ds the master promised the plaintiff to save him harmless. The plaintiff, having been made liable as bail, brought his action against the master upon his promise to indemnify ; and a verdict having been returned for the plaintiff, upon the general issue pleaded, the defendant moved in arrest of judgment that the action did not lie; and it was so adjudged, because, says the report, “ there is no consideration wherefore the defendant should be charged for the debt of the servant, unless the master had first promised to discharge the plaintiff before the enlargement and main prize made of his servant; for the master did never make request to the plaintiff for his servant to do so much, but he did it of his own head.”

A case more directly in point is Mayes v. Warren, 2 Strange 983, cited for the plaintiff in error.

That was error to reverse a judgment of the Common Bench, in case upon several promises after judgment by default, and entire damages. It was objected that the fourth count set out a promise upon a past consideration, it being alleged that the defendant, being indebted for work and labor done by the plaintiff for the defendant, on a day certain, postea, on the same day, in consideration thereof promised to pay, and that this consideration not being laid to be done at the request of the defendant, it was not sufficient in law to raise an assumpsit. For the original plaintiff it was insisted that this was not to be taken as a past consideration, because the work and promise were both laid on the same day, and .the law makes no fractions of a day. It was further contended, that it appeared to be at the request of the defendant, it being laid to be done for him, and that the defendant proinde deserved from the plaintiff so much. Sed per curiam, “ it does not appear that the work was for the benefit of the defendant, and we must take it to be a past consideration, it being laid that, postea, he promised to pay.”

In Livingston v. Rogers, 1 Caine 583, the declaration was assumpsit on mutual promises, setting out that the defendant, in consideration that the plaintiff had, at the request of the defendant, promised to perform, on his part, afterwards, to wit, on the same day, promised, &c., and, upon verdict found for the plaintiff, judgment was arrested. In considering that case the question whether, the promise being laid after consideration, but under a videlicet, on the same day, was' to be regarded as laid upon a past consideration, received a full examination from Kent, J., by whom the opinion of the court was delivered, and the consideration so laid was held to be executed.

There is, then, no cause of action set out in the second count, and the judgment, being rendered generally, is erroneous.

If damages are assessed generally, under a declaration containing two counts, one of which is bad, judgment must be for the defendant. Elsa v. Gateward, 5 T. R. 143; 3 Wils. 185; Blanchard v. Fiske, 2 N. H. 398.

On reversal of the judgment, this court will render such judgment as the court below should have rendered upon the record, as it there stood ; subject, however, to such amendments as are admissible after judgment and error brought.

It is said, in Rowell v. Bruce, 5 N. H. 381, that the kind of amendments admissible after judgment are such as relate to mistakes of the clerk in making up the judgment, remitting a part of the damages, correcting the verdict by the notes of the judge who tried the cause, and the like ; all of them amendments for the correction of such errors as may be corrected upon an inspection of the record by the unaided action of the court, without further proceedings by the party, without the intervention of a jury, and without the examination of evidence dehors the record. In that case Richardson, C. J., says: “ We are not aware of any rule of law which admits an amendment after judgment, or even after verdict, to supply the want of a material allegation in the declaration.”

But if the amendment were admissible, it could be made only in the court of common pleas. The record is there, and this court cannot alter the records of that; and we are not aware of any practice or principle of law which will warrant this court in remanding this cause to the court below for further proceedings, as in cases proper for the award of a venire de novo.

Judgment reversed.

* Ferlet, C. J., did not sit.