Clark v. Gamwell

• Decision Date: 21 October 1878
• Citation: 125 Mass. 428
• Parties: Rodolphus C. Clark v. John C. Gamwell
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 428

Rodolphus C. Clark v. John C. Gamwell

Supreme Court of Massachusetts

October 21, 1878

Hampden. Contract upon an account annexed for $ 108.50. Writ dated January 13, 1876. The declaration alleged that the plaintiff brought an action against the defendant and recovered judgment against him; that a horse belonging to the defendant was attached upon the writ in that action and placed in the hands of a keeper by the officer making the attachment; that after judgment was recovered, the defendant requested that the costs of keeping the horse should not be taxed in the taxation of costs and made part of the execution, and, in consideration thereof, promised to pay the plaintiff the same in a few days; that in consideration of said request and promise, the plaintiff consented that the fee for keeping the horse should not be so taxed; that the fee was not included in the taxation of costs; and that the defendant had not paid the plaintiff as agreed, but owed him the amount of the fee.

Answer 1. A general denial; 2. Want of consideration; 3. That the declaration did not set out a legal cause of action.

At the trial in the Superior Court, before Allen J., without a jury the facts set out in the declaration were proved substantially as alleged. It also appeared that there was a controversy between the parties as to whether the expenses of keeping the horse were properly taxable as a part of the costs of the suit, and the agreement and promise alleged in the declaration were made as an adjustment of this controversy; and that the plaintiff did not pay the officer's fee for keeping the horse until after this action was commenced. The defendant asked the judge to rule that the plaintiff had no cause of action against the defendant, at the time it was begun, because he had not then paid to the officer the fee for keeping the horse; that the fee could not legally be taxed in the bill of costs; and that the promise by the defendant to pay the same, for the consideration alleged in the declaration, would not support this action. The judge declined so to rule; and found for the plaintiff for the amount claimed. The defendant alleged exceptions.

Exceptions overruled.

H Morris & A. M. Copeland, for the defendant.

E. H. Lathrop, for the plaintiff.

Lord J. Ames & Soule, JJ., absent.

OPINION

Lord, J.

There does not appear to have been any error in the ruling of the presiding justice in this case. The action was brought to recover the expense of keeping a horse of the defendant which the plaintiff had caused to be attached upon a writ against the defendant, and is founded upon an express promise by the defendant to pay for the same. It is assumed by the defendant that such an action, under the authority of Cutter v. Howe, 122 Mass. 541, cannot be...