Knowlton v. Town of Guttenberg

5 Iowa 383

• Court: Supreme Court of Iowa
• Decided: December 23, 1857
• Status: Published

Opinion

Stockton, J.-

1. The demurrer was properly sustained. The petition is fatally defective. It contains no averment that the dispute about the title of the boat, had been settled, or that it had, in any manner, been ascertained who was legally entitled to the eleventh-sixteenths of the price to be paid by defendant, for the use of the boat, which it was agreed that defendant should retain until the dispute was settled.

■ 2. It is not averred that defendant promised to pay to plaintiff the amount claimed, when the owners of the boat should be ascertained,,and without such promise, plaintiff’ cannot maintain this action for the recovery of eleven-sixteenths of the contract price, upon an alleged legal liability of defendant to pay the same. Defendant had agreed to pay Jackman for the hire of the boat. Payment to Jack-man would have been a discharge of the obligation. The plaintiff, even if his right and title to eleven-sixteenths of the boat had been ascertained and determined, could not, by bringing a separate suit for the amount he was entitled to receive, parcel out the indebtedness of defendant into as many liabilities as there were owners of the boat. A direct promise to pay should have been averred and proved, to enable plaintiff to recover.

Judgment affirmed.