Dunham v. Kinnear

The opinion of the Court was delivered by

Kennedy, J.

It must be recollected that the plaintiff below founded his claims against the defendant exclusively upon contracts or agreements made between them.. First, upon a contract by which the plaintiff below, as he alleged, sold and delivered a wagon to the defendant. And secondly, upon a contract by which he hired his wagon to the defendant at 50 cents per day.

As to the sale of the wagon, it appeared from the evidence that it had been the property of the plaintiff below, without dispute, and that after the sale made of it by the constable, that the defendant below had said and repeated at different times to different persons, “ that he would pay Kinnear, the plaintiff below, whatever the wagon was fairly worth, if he would call and settle with him, notwithstanding the sale by the constable.” It was not pretended that there was any other promise made by Dunham to pay Kinnear for the wagon; and of course nothing beside this upon which he could support or claim any thing under the first count in his declaration for the sale- and delivery of the wagon. But this was not an absolute unconditional promise of Dunham to pay Kinnear what the wagon was fairly worth. He promised to do so only upon condition “if he would call and settle with him.” Now it does not appear that Dunham had any claim against Kinnear but the amount of the note, and the money which he had paid for Thompson's judgment, and to the constable, upon the sale of the wagon made- under that judgment. When we refer to those things, as disclosed by the evidence .given on the trial which had taken place between these parties, it is difficult to put any other construction upon the promise of Dunham as proved, than that he would allow and pay to Kinnear a fair price for the wagon, if he would settle, and let the amount of the note and the amount of the money which Dunham had paid for him on account of Thompsons judgment, be deducted out of the price of the wagon. Why should Dunham have qualified his promise by saying “ if he would call and settle with him.” These words cannot be considered as having been superadded without any meaning on the part of Dunham. It seems to be admitted that he must have had an allusion to the amount of the note; but why allude to the note more than to the money which he had paid on account of Thompsons judgment; for he never seems to have intimated that he did not consider himself justly entitled to the last as well as the first, or that he was willing to relinquish it, Dunham had a right, and the power to qualify his promise as he pleased; and upon the other hand, Kinnear was at liberty to accept of it or not, as he pleased. He had ho power to make it binding upon Dunham beyond what, or otherwise than as, he intended. Whether such was the meaning and intention of Dunham in making his promise to Kinnear, as I have suggested, ought to have been submitted by the court below in their charge to the jury, to be decided by them as a matter of fact, and if they should find that such was Dunham’s intention and understanding of his promise at the time he made it, to have told them, as matter of law, that they were bound to set a fair price, according to the evidence, upon the wagon, and to deduct from that the amount of the note, and the amount of the money paid on account of. Thompson’s judgment and the execution upon it; and if these two last sums should fall short of a fail-price for the wagon, to return a verdict in favour of Kinnear for the difference; or if they should exceed the price of the wagon, to return a verdict in favour of Dunham for the excess, whatever it might be.

But under another view of this part of the charge, there was clearly error in it. Whether Dunham was guilty of a fraud or not in procuring a sale to be made of the wagon under Thompson’s judgment, he had an undoubted and just right to be paid the amount of it by Kinnear, if Kinnear took advantage of such fraud, in case it had been commited, and upon that ground set the constable’s sale aside, and insisted upon having his wagon returned to him or being paid full price for it: Kinnear can not be permitted to blow hot and cold with the same breath; that is to say, that the sale of the wagon by the constable as his properly shall be good to satisfy and extinguish the judgment of Thompson that was assigned to Dunham, but at the same time void, that he may recover a full price for it from Dunham and put it into his pocket. If he then annuls the sale for the fraud practised, as is alleged by Dunham, the judgment must be considered as standing in full force and in no wise satisfied, and Kinnear bound to pay or satisfy it to Dunham, who bought it, as he had an unquestionable right to do, of Thompson, the plaintiff in it. Hence it would follow, that Dunham, in case of Kimear’s avoiding the sale, would have a right to issue a new execution upon the judgment, in order to obtain satisfaction of it, or to set off the amount of it in this action at his election. The surplus money which he paid to the constable beyond satisfying all the costs, he would be entitled to receive back from the constable or justice, or whoever may have it, unless Kinnear himself has received it, and in that case Dunham would be entitled to defalk in this action, not only the debt and interest, but all the costs, excepting the eosts of sale incurred Upon the judgment, together with the surplus money paid to the constable. If the sale of the constable be fraudulent and void, and was brought about by Dunham, he ought to pay the costs of the sale out of his own pocket, but to lose no more.

In what the court below said to the jury on the subject of hiring the wagon, there was palpable error, because there is not a tittle of testimony to support the count laid in the declaration for that claim, or going to show that there ever was any agreement or contract for hiring the wagon by Dunham of Kinnear. The only evidence of contract given by which Dunham was to have the use of the wagon, was a loan, which is quite the opposite of hiring, and must be so understood by every one. But the president told the jury, “ I do not say that the plaintiff may not recover for a short period, in addition to the value of the wagon.” This was in effect telling the jury that “ if they thought proper, they might allow the plaintiff below a hire of 50 cents per day for a short period.” And it would seem, from the amount of the verdict, that they did do so. The full value or price of the wagon, according to the evidence, was 45 dollars, and beyond this, with its interest up to the time of trial, in an action of assumpsit, or even in trover, the jury had no right to go in assessing the damages. Adding interest then to the 45 dollars up to the time of trial, would have brought the price of the wagon to nearly 50 dollars; from which, according to the direction of the court, the note of 18 dollars and 20 cents, with its interest, which was 20 dollars, was to be deducted, which would have left a balance of 30 dollars: but the jury gave a verdict for 58 dollars, nearly double 30 dollars. Here are 28 dollars added by the jury for the hire of the wagon. There being no evidence of contract for the hire of the wagon, the court erred in directing them that they might allow any thing on that count in the declaration for the plaintiff below.

Judgment reversed, and a venire facias de novo awarded.