White v. Richardson

12 N.H. 93

• Court: Superior Court of New Hampshire
• Decided: July 15, 1841
• Status: Published

Opinion

Up ham, J.

The exception is here taken that the promise to pay the debt of Woolson, by the firm of Johnson & Carle-ton, was without consideration, and not in writing, and therefore within the statute of frauds. But we think this view of the case arises from a misconception of the true position in which the parties are placed.

The defendant, Richardson, covenants to work in the employment of the firm of Johnson & Carleton, on condition that his wages, deducting some portion of the amount for actual necessaries, should be paid by them upon his debt to Wool-son ; and the firm engage to make such payment as fast as the wages accrue. The labor, then, of the defendant is an executed consideration, binding the firm to a compliance with their engagement. The amount of wages as it becomes due is so much funds in the hands of the firm belonging to Wool-son ; and, under the agreement betwixt the parties, would extinguish, as fast as received, Richardson’s debt to Woolson. Woolson has agreed by this contract to receive any amount paid in this way to the firm as a payment to him; and neither he nor the firm can avoid this contract to the prejudice of Richardson. Various authorities might be cited to this point. 7 N. H. Rep. 397, Heaton vs. Angier; Ditto 345, Butterfield vs. Hartshorn; 3 D. & E. 180, Tatlock vs. Harris; 5 Barn. & Ald. 228, Wilson vs. Coupland; 4 Barn. & Cres. 163, Wharton vs. Walker; 3 Ditto 591, Caxton vs. Chadley; 8 Pick. 280, Curtis vs. Norris & a.; 10 Mass. R. 316, Crocker vs. Whitney; 17 Mass. R. 575, Hall vs. Marston; 12 Johns. 385, Gill vs. Brown; 7 Ditto 103, Beecker vs. Beecker; 8 Ditto 149, Holley vs. Rathbone.

A farther exception is taken as to the charge of the trustee for the amount for which he was adjudged liable as bail. It is contended that this contract as bail was a mere contingent liability, and that the trustee had no right to withhold wages received by him, as an indemnity on-such claim, against attachment by trustee process.

But the contract as bail is an executed contract, furnishing an abundant present consideration for the receipt of wages, or the payment of money, to be holden to abide the extent of the claim. Such a contract could not be interrupted by a service of trustee process. There is no principle of law which would require this. The contract should be fairly sustained, and the respective rights of the parties preserved under it. Sxfbject to such rights, the trustee process might subsist, and would avail or not, according to the ultimate liability of the trustee as bail.

On these grounds the charges made by the trustee are allowed ; and, as the account is thus made up, he is entitled to judgment.

Trustee discharged.