Cunningham v. Soules

7 Wend. 106

• Court: New York Supreme Court
• Decided: May 15, 1831
• Status: Published

Opinion

By the Court,

Sutherland, J.

Under the circumstances of this case, it was properly left by the judge to the jury, to determine whether the promise or undertaking of the defendant, on which this action is brought, was an individual and persona¡ on6) 0r whether it was made as the agent of the Franklin Canal Line. The jury have found that it was a personal contract of the defendant, and I think the evidence fully sustains the verdict on that point. It was a notorious and conceded fact, at the time when this transaction took place, that the company had failed. It was a part of the undertaking of the defendant, that the horses which he was to send to the plaintiff in lieu of those delivered by the plaintiff to him, were to be kept until the plaintiff’s account against the company was paid; thus fully admitting the lien of the plaintiff, and that such lien was his only security for his debt. It is not to be supposed, under such circumstances, that the plaintiff would have parted with the horses in his possession, ppon the promise of the company to send him four others of equal value. The defendant’s promise was in its terms, personal, and not for, or on account of the company. The plaintiff undoubtedly relied upon the individual responsibility of the defendant for the performance of his undertaking, and parted with the horses in his possession, upon the strength of it.

Whatever may have been the construction of the original written contract between the plaintiff and the company, it is shown by the written admission of Smyth, and the testimony of Field, who appear to have constituted the company, and also by the admission of the defendant, that at the time when the plaintiff gave up the horses in his possession to the defendant, he had an acknowledged lien upon them for the balance due to him. No matter, then, what the original contract was, if that did not give him a right to detain the horses until he was paid for their keeping, it was subsequently changed, so as to give him such lien. The judge also left the question to the jury, telling them that if the plaintiff had a lien, it must be under a subsequent agreement. The jury have properly found such agreement.

The plaintiff then having a right to detain the horses of the company, until his account was paid, and having delivered them to the defendant upon his individual promise to return other horses particularly specified at the time, of equal value? and the defendant having failed to perform his contract, and the plaintiff’s account not having been paid, the defendant is legally and equitably bound to make good his loss.

Motion for new trial denied.