Abbott v. First Universalist Society

Superior Court of New Hampshire

Abbott v. First Universalist Society

28 N.H. 22

DecidedDecember 15, 1853

StatusPublished

This text of 28 N.H. 22 (Abbott v. First Universalist Society) is published on Counsel Stack Legal Research, covering Superior Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abbott v. First Universalist Society, 28 N.H. 22 (N.H. Super. Ct. 1853).

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Opinion

Gilchrist, C. J.

The ruling as to the admissibility of the note under the first and second counts, was correct. The action was against the First Universalist Society. The evidence shows a promise by two persons, who describe themselves as the committee of the First Universalist Society. The committee may be holden, in some cases, where the society is not holden, and we cannot say that the committee and the society are identical, so that a promise by one is, in its legal effect, a promise by the other.

As to the third count for services rendered, if B. owes A. and C., without any consideration and without request from B., gives his note to A. for the debt, and then A. sues B., we see no ground upon which C. can be excluded as a witness. The record in the suit between A. and B. cannot be evidence in a suit by A. against C. Is the immediate effect [25]*25of a recovery by A. against B. to better the condition of C. In this case, Fifield is not interested in the record as an instrument of evidence. A recovery by the plaintiff would do him no good, in the event of a suit by the plaintiff against him on the note. The judgment would be no evidence, because it would be res inter alios acta, and would constitute no defence. Such a recovery would be of no immediate benefit to him. He would be no more or less liable on his note. He would not receive that certain benefit which is contemplated in the case of Latham v. Kenniston, 13 N. H. Rep. 203. Fifield was not a member of the society, nor authorized to contract on its behalf. He was simply one who gave his note for another person’s debt, without authority or consideration. In the case of Curry v. Rogers, 1 Foster’s Rep. 247, it was held that in an action of assumpsit there must be either an express or an implied promise from one party to the other. It is not sufficient that moneys are advanced or services rendered for a party to make him liable therefor. They must have been authorized, either expressly or impliedly, or must have been subsequently sanctioned by him.

Judgment on the verdict.

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Gilchrist, C. J.

The ruling as to the admissibility of the note under the first and second counts, was correct. The action was against the First Universalist Society. The evidence shows a promise by two persons, who describe themselves as the committee of the First Universalist Society. The committee may be holden, in some cases, where the society is not holden, and we cannot say that the committee and the society are identical, so that a promise by one is, in its legal effect, a promise by the other.

As to the third count for services rendered, if B. owes A. and C., without any consideration and without request from B., gives his note to A. for the debt, and then A. sues B., we see no ground upon which C. can be excluded as a witness. The record in the suit between A. and B. cannot be evidence in a suit by A. against C. Is the immediate effect [25]*25of a recovery by A. against B. to better the condition of C. In this case, Fifield is not interested in the record as an instrument of evidence. A recovery by the plaintiff would do him no good, in the event of a suit by the plaintiff against him on the note. The judgment would be no evidence, because it would be res inter alios acta, and would constitute no defence. Such a recovery would be of no immediate benefit to him. He would be no more or less liable on his note. He would not receive that certain benefit which is contemplated in the case of Latham v. Kenniston, 13 N. H. Rep. 203. Fifield was not a member of the society, nor authorized to contract on its behalf. He was simply one who gave his note for another person’s debt, without authority or consideration. In the case of Curry v. Rogers, 1 Foster’s Rep. 247, it was held that in an action of assumpsit there must be either an express or an implied promise from one party to the other. It is not sufficient that moneys are advanced or services rendered for a party to make him liable therefor. They must have been authorized, either expressly or impliedly, or must have been subsequently sanctioned by him.

Judgment on the verdict.

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28 N.H. 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-first-universalist-society-nhsuperct-1853.

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