Halsted v. Francis
| Decision Date | 12 January 1875 |
| Citation | 31 Mich. 113 |
| Court | Michigan Supreme Court |
| Parties | David M. Halsted v. William H. Francis |
Heard October 27, 1874
Error to Ingham Circuit.[*]
This was an action of assumpsit brought by Francis against Halsted.
The plaintiff declared specially upon an agreement substantially as follows: that the plaintiff being the owner of a promissory note executed by one William Rice, the defendant Halsted, in consideration of the sale and delivery by said Rice to defendant of a horse, harness and buggy, undertook and promised said Rice to pay the said note to the plaintiff (Francis) and take up the same at maturity; and "therefore" (it is alleged), "the defendant afterwards, on the same day, etc., in consideration of the premises, promised the plaintiff to pay him the amount to become due on the note," etc.
The declaration contained also the common counts. The plaintiff proved the agreement between defendant and Rice, and the consideration of that agreement, substantially as alleged. But the plaintiff was not present nor a party to the agreement. Evidence was however given tending to show that some time afterwards the defendant told the plaintiff of the agreement, and promised the plaintiff to pay him the note. The plaintiff, however, still continued to hold the note, and did not release Rice or give up his liability, nor pay or give to defendant any consideration for his promise to pay the plaintiff.
The court charged the jury that the plaintiff could not recover unless the evidence shows a promise (meaning, as the context shows, an express promise) by the defendant to the plaintiff whereby he promised to pay the plaintiff; but if the defendant made the agreement alleged with Rice, and upon the consideration alleged, and that the property was sold to Rice on the condition that defendant should pay the plaintiff the amount of Rice's note to the plaintiff, and that in consideration of that agreement the defendant made an express promise to the plaintiff to pay him the note, then this would take the case out of the statute of frauds, and the plaintiff would be entitled to recover.
The defendant excepted and the case comes to the supreme court on writ of error and bill of exceptions.
Judgment reversed, with costs, and a new trial awarded.
Huntington & Henderson, for plaintiff in error.
W. H Francis, in person, and M. V. Montgomery, for defendant in error.
Christiancy J.:
If the plaintiff below was entitled to recover at all upon the evidence, it could only have been upon the special count upon the special contract declared upon. The evidence very clearly made no case for a recovery upon the common counts.
The only contract alleged and proved was a contract between the defendant and Rice, to pay the note of the latter to the plaintiff, who was no party to that contract, who gave no consideration for, and was in no way bound by it. The only consideration paid was paid by Rice, and ...
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People's Sav. Bank v. Geistert
...of contract between the assignee of the vendee and the vendors. Pipp v. Reynolds, 20 Mich. 88;Turner v. McCarty, 22 Mich. 265;Halsted v. Francis, 31 Mich. 113;Osborn v. Osborn, 36 Mich. 48;Hicks v. McGarry, 38 Mich. 667;Hunt v. Strew, 39 Mich. 368;Wood v. Truax, 39 Mich. 628;Hidden v. Chapp......
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Shamp v. Meyer
...17 Neb. 494. Carman v. Kelly, 5 Hun. (N. Y.), 283. Sawyer & Snell, for defendant, cited: Tweddle v. Atkinson, 1 B. & S., 393. Halsted v. Francis, 31 Mich. 113. Exchange Bank v. Rice, 107 Mass. 37. Anderson Fitzgerald, 21 F. 294. Clapp v. Lawton, 31 Conn. 95. Garnsey v. Rogers 47 N.Y. 233. L......
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Linneman v. Moross' Estate
... ... circuit judge thought the case came within the principles of ... Pipp v. Reynolds, 20 Mich. 88; Turner v ... McCarty, 22 Mich. 265; and Halsted v. Francis, ... 31 Mich. 113. In each of those cases the plaintiff counted on ... a promise made to a third person,-not to himself. In this ... ...
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