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1818. no moral obligation, even an express promise from Hassinger Philalelphia. to Solms, would have been nudum pactum. There was, howHassisoze ever, no express promise. The renewing of the note with Sons. Solms's guarantee, was a transaction, to which Hassinger's

former promise of indemnity did not extend ; and his promise to Conrad Eberth, cannot be considered as enuring to the benefit of Solms. It never was so intended. To Eberth, the defendant promised to pay the note; but a promise to indemnify Solms, wouid have been collateral to payment. There might have been, and in fact was, good reason to distinguish between the Eberths and Solms; the loss in the end might have rested on the former, and Hassinger was bound in conscience to keep them clear, as he passed to them, in payment of a fair debt, the original note, which was received as matter of favour to him. But with regard to Solms, who acted in direct opposition to his wishes, and therefore took the whole responsibility on his own shoulders, the case was quite different; he renewed his guarantee not only without the request of the defendant, but against his express declarations that he did not wish him to do so, and that if he did, it would be at his peril. There was therefore no express promise to Solms; there was a promise to Eberth, and if the question were between him and the defendant, the consideration might possibly be deemed sufficient. A moral obligation is a good consideration for an express promise, although it is not sufficient to raise an assumpsit by implication of law; but, as between the plaintiff and defendant, there was neither express promise, nor moral obligation. There is nothing in the transaction, to raise a promise from the relation in which the parties stood ; principal and agent is out of the question ; engagement to Solms, there was none; and his having acted in direct opposition to the request of Hassinger, absolves the latter from all obligation, moral or honorary. But the substantial objection is, the Judge left to the jury, to presume from the promise to Eberth, and against clear evidence to the contrary, that Solms acted in pursuance of the instructions, and at the request of Hassinger. This was lest to the jury, as a legal presumption; for no one will pretend an admission of the actual fact in any wise followed, from the conversation with Eberth. But if the matter were left as a presumption of fact, the charge was still wrong; for though a jury may draw any conclusion, that in their judgment the evidence will warrant, yet they are not at liberty to 1818. . presume the existence of a fact, without any evidence, or con- Philadelphia. trary to what their judgment informs them, is the truth of HASSINGER the case ; and to instruct them they may do so, is, I appre- SOLMs. hend, error. But no legal presumption arose. If, in this case, an authority and precedent request can be implied, it may be so in every instance, where, in the estimation of the jury, the act is beneficial; and this would render the necessity of a precedent request merely nominal, which is a substantial part of the plaintiff's case, that must be proved. Hayes v. Warren, 2 Stra. 933. What is there here to distinguish the case? Barely the promise to pay Eberth. Now granting the renewal of the note was in fact beneficial, yet the plaintiff could not support an action directly, on even a promise to indemnify him, if made not to himself, but to Eberth; it will follow pretty clear, he can derive no benefit in a collateral way, from any promise to Eberth. That he could not sustain an action, is settled. No one can maintain assumpsit, on an agreement to which he is not a party. Jordan v. Jordan, Cro. Eliz. 369. The rule however, has been softened, where the consideration is a provision for a child, but in no other case. Dutton v. Poole, 1 Vent. 318. Rookwood's case, Cro. Eliz. 163. Bourne v. Mason, 1 Vent, 6; as where the defendant's father, who was also father to the plaintiff's wife, was about to cut down 10001. worth of timber, as a portion for her; whereupon defendant promised his father, that he would pay the 10001., if his father would not fell the timber. Held on motion, this was a sort of debt due the daughter, and a provision, and that she could maintain an assumpsit, though a mere stranger could not. A stronger case was cit. ed, where a physician was promised money for himself, and also for his daughter, if he would perform a certain cure; it was held, the near relationship gave the daughter the benefit of the consideration performed by her father, and that she might maintain assumpsit. Upon the same ground, the promise must be made to the plaintiff himself, for general declarations are not sufficient, 1 Roll. Abr. 6; as where in a discourse between the father of A. and B., touching a marriage between the daughter of B. and A.; B. said, he would give 1001. to whoever would marry his daughter with his consent; A. did marry her with his consent, and brought assumpsit; held, these declarations did not amount to a promise to the

1818. plaintiff himself, and therefore gave no right of action. This Philadelphia. was before the statute of frauds, which, in England, renders HassiNGER such a promise void, on another ground. I mention these SOLMs. cases, to shew that a stranger to the consideration, or to

the promise, can derive no benefit from it. Solms, was a stranger not only to the promise to Eberth, but also to the consideration, which was a personal obligation to Eberth; and if he could not maintain a suit, directly founded on it, I am at a loss to know, how he can make it indirectly the foundation of an action. There is no special assumpsit laid in the declaration, and this suit is not pretended to be founded on any express promise to either Eberth or Solms, but on an implied promise, in consideration of an act done at the request of the defendant; and a promise to a third person not importing any acknowledgment of a request, is left to the jury as raising a legal presumption, or as evidence suficient to justify them in implying an actual request, and this too, in direct contradiction to the acknowledged truth of the fact. This is to give indirectly and by a fiction, an action to a person, not a party to the promise, and in this instance, a stranger to the consideration; and to this I object, as error. The Judge who tried the cause seems to have been strongly impressed with the natural equity of the plaintiff's demand; in a court of error, however, that cannot enter into the consideration of a Judge, without extreme danger of the established principles of law being thereby warped ; and therefore, if I even concurred in the existence of any claim on the defendant's honour or conscience, I should refuse it any operation, in discussing the abstract principles of law. I am of opinion, the judgment ought to be reversed.

Duncan J. The charge of the Court is objected to, on four different grounds :

1st. There was no consideration for the subsequent pro. mise.

2d. That it was not made to the plaintiff, and therefore he could support no action.

3d. That the fact of agency was not left to the jury, and that the Court erred in the effect given to the declarations of Hassinger, they not amounting in law, to a ratification of the promise on the renewal of Solms.

4th. To the form of action.

The statement of the evidence furnishes abundant matter 1818. to shew, that Hassinger was under an equitable obligation to Philadelphia pay. Hassinger was originally liable. The note, as passed HassiNGER to Eberth, was his act; he promised to be responsible when Soz he passed it to Eberth When it fell due, it was renewed. It was then known that Orth, if not insolvent, was in very doubtful circumstances. The renewed note was not indorsed by Hassinger; but he guaranteed the payment. Upon the third note falling due, Orth called to have his guarantee renewed; but Hassinger, instead of renewing it himself, applied to Solms, declaring to him, that he had sworn not to give a fourth guarantee, but requested the plaintiff to guarantee it, and he would indemnify him. This Solms, on his request, did. When this was about coming due, Hassinger fearing the importunity of Orth, went out of town to avoid it; instructed Solms not to have it renewed, but let it be protested ; that if renewed, he would have nothing to do with it. When it fell due, it was withdrawn from the bank, 215 dollars being paid, and a new note from Orth to Eberth, with John Cook indorser, and Solms's guarantee. Hassinger, when he returned to the city, and was informed of what had been done, said he would pay the note which had been renewed. Solms has paid the note ; Orth and Cook having become insolvent.

This would be considered as between Solms and Hassinger, as the original debt of Hassinger; and there then would be more than an equitable consideration for the subsequent promise. But if the consideration was barely equitable ; and I think there can be no doubt, but that Hassinger, having introduced Solms into the business, if Hassinger was satisfied that Solms had done the best he could for his interest; that the debt had been diminished 215 dollars; another pame had been added for his security, as good as the bank, as Hassinger expressed himself; that this promise, was only to do, what an honest man ought to; the ties of conscience on an upright man, are a sufficient consideration; and though no court of law or equity could have enforced the payment, yet this affords a sufficient consideration, if not to raise an implied assumpsit, to support an express promise, Cowp. 290. 5 Binn. 33. 3 Hen. & Munf. 184.

However this doctrine may have been shaken, by subsesequent decisions in England, I consider it as adopted in

SOLMS.

1818. Pennsylvania, to the extent of such consideration supporting Philadelphia. an express promise. Hassinger, previous to the subsequent Hassi NGEt promise, had received a benefit; the consideration was ori

ginally beneficial to him, and this surely was a sufficient consideration. Hassinger in all fairness, on his return, if he intended not to be further bound, should have said so; instead of which, he renews his original guarantee ; takes the note, finally on himself; throws Solms off his guard, by assuming responsibility; placing Solms precisely in the state he stood on his first guarantee. This renovation of the original promise, may be aptly compared to the case of a negotiable promissory note, where no demand has been made on the drawer. Though the indorser is discharged, and though the law be, that if he afterwards promise, it is nudum pactum; yet if, with full knowledge that no demand had been made on the promisor, he undertakes to pay, such promise is binding. Hopkins v. Liswell, 12 Mass. 52. Here the promise could not be founded either in mistake of the law, or the fact. He must know how far he intended to be bound by his original promise ; how far he was absolved from that promise, by the renewal of the note against his instructions ; and with full knowledge of the whole, he waives the instructions ; dispenses with the order he had given Solms; ratifies the act of his agent; renovates the original promise.

But it is said, the subsequent promise was made, not to Solms, but to Eberth. Eberth was not a mere stranger, but the party ultimately to be benefited by Hassinger, through the medium of Solms's guarantee. It was not a mere speech in discourse with a stranger; but a solemn renewal of his guarantee, made in the name of a party in interest. This promise, thus made to Eberth, being for the benefit of Solms, he may maintain an action on it. For the law seems well settled now, whatever contradiction may be in the more ancient cases, that if one person makes a promise to another, for the benefit of a third, that third may maintain an action on it. But the declaration of Hassinger to Eberth, may be considered as a confession of his liability to Solms ; a decla. ration of a fact. The fact of the original agency cannot be doubted; that Solms came into the guarantee, as the agent of Hassinger, and for the purpose of getting Hassinger's name off the paper; and it was a fact submitted to the jury to say, whether the subsequent declarations of Hassinger did not sanc

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