1818. v. SOLMS. benefit, still a voluntary benefit done to another does not raise an implied promise on his part, to recompense the par- Philadelphia. ty. A voluntary curtesy is no consideration for an assump- HASSINGER sit. Bull. N. P. 143. Cro. Jac. 18. Indebitatus assumpsit will not lie against a father for money lent to his son, at the request of the father. Carth. 446. 1 Salk. 23.; nor for a promise to do a collateral thing. 2 Vent. 36. Indebitatus assumpsit does not lie against A., for money lent by B. to C., at the request of A. B. should bring a special action, stating, that he had lent the money to C., at the request of A. If there be no consideration, the agreement is nudum pactum. 2 Bl. Com. 445. 1 Fonbl. 333. The plaintiff in error expressly cautioned Solms not to renew the note, and that he would have nothing to with it if it were renewed. He was, therefore, discharged from all the responsibility to which he was before liable, and if he made any new promise it was without consideration, and a nudum pactum. The Court below placed the case on the ground, that Solms was the agent of Hassinger. But there is nothing like agency in the transaction. It was an assumption of a fact by the Court, and it is error for the Court to decide a fact. An agent is one who is appointed to do something for his principal; but here Solms was to do nothing, but let things take their own course. He cannot, by unwarrantably interfering, create an obligation upon Hassinger, contrary to his express commands. Phillips, in answer, observed, that the circumstances plainly shewed, that Solms was the agent of Hassinger, and in that capacity came into the business. The latter had sworn, that he would not guarantee a note; and procured the former to do it on an engagement to indemnify him. Whether Solms was an agent was submitted to the jury; and they have by their verdict, decided that he was. It is at least doubtful, whether Hassinger was not benefited by payment of part of the note, and a renewal of it for the residue with a new indorser. It is obvious, that he thought he was; and from his declarations, the jury were warranted in inferring an authority on his part to do what was done. At any rate, they were a ratification of Solms's act; and that ratification being made in consideration of an act that may have been beneficial to Hassinger, and which he thought was so, is equal to a pre 1818. vious command, agreeably to the maxim, omnis ratihabitie Philadelphia. retrotrahitur et mandato equiparatur. Where a benefit reHASSINGER Sults, a promise after the benefit done is binding. 1 Com. on SOLMS. Cont. 23. v. TILGHMAN C. J. The Judge of the District Court, in which this cause was tried, left it to the jury to decide, whether the defendant had ratified the act of the plaintiff in guaranteeing the last note, on payment of $215, and obtaining a new indorser; and gave them his opinion, that in case they should think the plaintiff's proceedings had been ratified, he might recover in this action. We are not now considering a special verdict. No facts are found, and the only question is, whether the Judge erred in law, in his charge to the jury. In order to determine the correctness of the opinion, that the plaintiff was entitled to a recovery, in case his acts were ratified by the defendant, we must suppose that his acts were ratified. Then applying the maxim, "that the ratification of any act is, in law, equivalent to a command or request to do that act," and the case will stand thus :-The defendant being responsible for the payment of the note which fell due soon after he left town, the plaintiff at his request had that note withdrawn from bank, and made himself responsible for the last note, which he afterwards paid, not voluntarily, but because he was bound to pay it. Can this be considered as money paid for the use of the defendant? I think it may. It is not unlike the case of a surety, who, having paid the debt, may recover against his principal, in a general action of indebitatus assumpsit, on an implied promise. No man, by a voluntary payment, can make himself the creditor of another and recover against him. But where he pays a debt, for which he has become responsible, at the request of another, the law implies an assumption. But, it is objected, that the defendant having warned the plaintiff, that he would have nothing to do with any note which should be given after he left town, he thereby became discharged from all responsibility for the last note, and any promise made afterwards was nudum pactum. Therefore, it is said, the Judge was wrong in submitting to the jury the fact of the defendant's having ratified the act of the plaintiff. It is very true, that a promise made without consideration, is void. But can it be said, that there V. SOLMS. was no consideration for an engagement by the defendant to 1818. ratify the act of the plaintiff? If the note for which the de- Philadelphia. fendant was responsible, had not been withdrawn from bank, HASSINGER he might perhaps have lost the whole by Orth's insolvency. Whereas, by withdrawing it, he secured payment of part and obtained the chance of benefit from a new indorser. Perhaps, indeed, if the note had not been withdrawn, the whole might have been paid by Orth. It is a doubtful matter; but when the defendant approved the conduct of the plaintiff, it may be presumed, that he was conscious of having received a benefit. It would be hard in such case to presume, that he received no benefit, and if he received any benefit, it is not nudum pactum. Concerning the merits of this case, I never had any doubt. A man, who, in the defendant's situation, made a promise of payment, certainly ought to pay. But I had doubts concerning the form of action. Upon reflection, however, I am satisfied. Where one man, at the request of another, becomes responsible to a third person for the payment of money, he may, upon making payment, recover against the person who requested him, as for money paid for his use; and that too, although the person making the request be not benefitted by the payment. In Harris v. Huntbach, 1 Burr. 373. the defendant, Huntbach, requested the plaintiff to pay a sum of money to some labourers who were working in the garden of another person. And it was held, that the plaintiff might recover, as for money paid for the use of the defendant. The case before us has been perplexed by considering it as a promise made by the defendant to Eberth, to pay the last note. It will be simplified, by considering it in the view in which it was submitted by the Judge to the jury; that is to say, by considering what was said by the defendant to Eberth, as evidence of his assent to the act of the plaintiff, in withdrawing one note and becoming responsible for the other. And of this it was powerful evidence, for why should the defendant say, that he would pay the note unless he approved of the plaintiff's conduct? Upon the whole, I perceive no error in the Judge's charge, and am, therefore, of opinion, that the judgment should be affirmed. GIBSON J. The material facts are simply these: Hassinger, the defendant below, being the holder of Henry Orth's note, paid it away to Joseph Eberth, for carpenter's work, VOL. V.-B v. 1818. who passed it to his brother Conrad Eberth, and received Philadelphia. the amount in cash. When it became due, it was renewed HASSINGER by a note drawn by the firm of Orth and Kean, at sixty days, SOLMS. and guaranteed, though not indorsed by Hassinger. When this second note became due, it was renewed and guaranteed as before, for sixty days longer. When the third became due, application was again made to Hassinger, but wishing to disengage himself, he refused to continue his responsibility, alleging he had bound himself by an oath not to guarantee another note. However, being pressed, he consented to indemnify the plaintiff Solms, if he would guarantee the note proposed. Solms agreed to do so; and on this footing matters were arranged. Just before this fourth note became due, Hassinger told Solms he was going out of town to avoid importunity on the subject, and desired him, if it were not paid, to let it be protested, but on no account to have it renewed, and if it were renewed, it would be at the risk of Eberth and Solms, for he, (Hassinger) would have nothing more to do with it. Notwithstanding this, the note was withdrawn from bank, where it had been deposited for collection, and 215 dollars being paid, a new note with an additional indorser was given, Solms again warranting the payment. Hassinger returned to town, and in conversation with Conrad Eberth, being informed of what had been done, said "never mind, I will pay it." Being told of the additional indorser, he said "he is as good as the bank, I will warrant the payment." Solms was ultimately compelled to pay the note. On this statement of facts, I do not see how it is possible for the plaintiff to recover. The Judge who tried the cause, left it to the jury to consider Solms as the agent of Hassinger, and entitled to recover for a loss sustained in the course of his agency; and that though the loss arose from an act done contrary to the express instructions of his principal, yet as the act was in fact beneficial to the principal, who afterwards ratified it, there was a good consideration for an assumpsit, and the jury might presume the act to have been done at the instance and request of the principal. From this opinion, I entirely dissent. There is nothing in the evidence to shew that Solms warranted the note as the agent of Hassinger. Whether the facts given in evidence were true, was for the consideration of the jury; but whether the evidence, 1818. v. SOLMS. if true, shewed that the parties stood in the relation of principal and agent, was a question of law. There is nothing in Philadelphia. the evidence, from which an agency can be inferred. Solms HASSINGER did not contract as an agent, for he rendered himself personally liable; he did not pretend, nor was it understood he had any authority to bind Hassinger, who was not to be looked to by Eberth, in any event. Solms at first entered into an engagement at the request of Hassinger, and under a promise of indemnity, it is true, but that is a very different thing from doing the business as the agent of the latter. Thus stood matters at the first transaction, between Hassinger and Solms. Nor can the previous existence of the relation of principal and agent be inferred from Hassinger having afterwards instructed Solms not to permit the note to be renewed. This was in fact not an instruction to an agent, but a declaration that he would not, in the event of a renewal, continue his engagement of indemnity. But if Solms had been an agent in the first instance, he was so only pro hac vice, and it does not follow, that he was an agent when he last guaranteed the note. It cannot be pretended he acted by authority; for all previous authority, if any existed, had been withdrawn; and there certainly was no general authority. Where there is a general authority, or perhaps a limited one to do one act, or transact one piece of business, and the agent transcends his powers, the principal may ratify the act as between him and the person with whom the agent contracted; for such ratification amounts to a new agreement by the principal, which if he please, he may well make without the intervention of an agent. But as between the principal and agent, the matter stands on different ground. The agent in such case, has no claim either to indemnity or compensation, and even an express promise to that effect, would be nudum pacHere there was no moral obligation resting on Hassinger, to indemnify Solms. It is said, that procuring payment of a part of the former note, and a new indorser, was a substantial benefit; but Hassinger was the best judge of that; and it might have been otherwise, for Orth and Kean might perhaps have raised the money, rather than suffer their note to be protested. But be that as it may, every man has a right to manage his own affairs in his own way, and no one has a right to interfere and make him responsible for a supposed benefit imposed against his wishes. Then there being tum. |