Dearborn v. Sawyer , 59 N.H. 95 ( 1879 )

The defendant did not undertake to pay the debt of Emerson to Dearborn, but promised that the plaintiff should not lose anything by releasing his attachment. If there were no funds attached in the hands of the Concord Railroad, then the plaintiff lost nothing by the release, for there were no funds to be released. The question then is, whether the Concord Railroad was indebted to Emerson, that is, whether Emerson was in the employ, of the C. R. R. or of the M. N.W. R. R. The referee finds that the defendant's guaranty was without consideration. By this we understand him to mean that there were no funds attached, because the legal effect of the defendant's undertaking was that he would pay whatever sum the plaintiff should release from attachment; and if there were any funds attached, the release would support a consideration to the amount of such funds. Wallace v. Holmes,2 N.H. 111; Hackett v. Pickering, 5 N.H. 19; Haynes v. Thom, 28 N.H. 386; Robinson v. Gilman, 43 H. H. 485, 492. The referee has not found, in terms, that Emerson was in the employ of the M. N.W. R. R. But his finding, that there was no legal or valid attachment of Emerson's wages, can be put upon no other ground than a finding that he was in the service of that road. The principal question litigated before the referee was, whether Emerson was in the service of the Concord or the North Weare road. The defendant contended that he was employed by the latter road, and the referee's finding that he was so employed is in conflict with the facts he has reported; for it is found that the North Weare road is operated by the Concord, and that the help are paid by the cashier of the Concord road and with its money. Upon this branch of the case the evidence of the cashier, W., was limited to what he personally knew, and there could be no exception to its admissibility.

But the testimony of W. as to the amount due Emerson at the time of the attachment was not derived from his personal knowledge, but from information furnished by a co-servant of the railroad, and, being only hearsay, was inadmissible. In a suit by or against the corporation, the evidence might be admissible on behalf of the other party as an admission coming from its authorized agent. But in a suit between third parties the evidence is hearsay.

Whether the undertaking of the defendant was an absolute, unqualified contract to indemnify, or a collateral undertaking, we need not inquire, for the necessity of demand and notice was obviated by the insolvency of Emerson. Beebe v. Dudley, 26 N.H. 249; Batchelder v. Wendell, 36 N.H. 204, March v. Putney, 56 N.H. 34.

There must be a rehearing upon the question of damages, that is, whether the Concord Railroad owed Emerson, and if so, how much, at the time of the attachment. If it shall be proved that the road was indebted to him, the plaintiff will be entitled to judgment for the sum so found.

Case discharged.

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