Citation Numbers: 28 How. Pr. 139
Judges: Daniels
Filed Date: 11/15/1864
Status: Precedential
Modified Date: 1/12/2023
The defendant moves to set aside the complaint and the order of arrest in this cause. The summons contains a notice that in case of failure to answer, the plaintiff will apply to the court for relief; and it is insisted the complaint is for the recovery of money only upon contract.- But while an agreement is stated in it, the essential
But as to the residue of the motion, the statement of the contract in the complaint under which the defendant acquired possession of the property, becomes more material. The same statement is repeated in substance in the plaintiff’s affidavit used to oppose the motion. The clause now referred to in the affidavit, is in these words “ That afterwards, and in the fall of the year 1854, said defendant applied to deponent for the loan of said engineer’s transit until the following spring, promising to return the same then to deponent, or to pay him the value therefor in money; that deponent loaned the said transit to defendant to use upon said terms.” The complaint states that the defendant promised to return the property or pay the sum of one hundred and twenty-five dollars as its value. The property was not returned, but in August, 1857, the defendant paid the plaintiff fifty dollars towards its price, and in October, 1863, made and delivered to the plaintiff his due bills for balance of eighty-one dollars. Altho'ugh the allegation in the complaint and the statement in the affidavit describe this as a loan, it is very plain that such was not the legal character of the transaction. It was more than a mere loan, for the contract contemplated that the defendant should become the owner of the property, if he elected to keep it and pay the price which was agreed upon. The election was with him, and it may be fairly inferred that he availed himself
The motion, so far as it includes an application for a discharge of the defendant from arrest must be granted, but without costs, because the defendant in his papers asked for more than he was entitled to claim.