Leach v. French

• Decision Date: 23 April 1879
• Citation: 69 Me. 389
• Parties: FRANCIS C. LEACH v. WILLIAM P. FRENCH.
• Court: Maine Supreme Court

69 Me. 389

FRANCIS C. LEACH v. WILLIAM P. FRENCH.

Supreme Judicial Court of Maine.

April 23, 1879

ON REPORT.

ASSUMPSIT, upon an account annexed, to recover for the board and keeping of a sick horse while alive, and the expenses of removal when dead.

Defendant was owner of the horse and let him to a young man by the name of Devereux. The horse became diseased and sick while in Devereux's hands and he left him with the plaintiff for care and cure. While the horse was on the hands of the plaintiff the defendant wrote him informing him the horse belonged to him, making inquiry about the condition of the horse and saying that an uncle of Deveruex would pay his bill. After the bill was contracted, (the horse being dead) the counsel for the plaintiff wrote the defendant demanding payment of the bill. The defendant answered thus: " Please not make any cost on it (the bill) as I will call and settle the same soon." Plaintiff's attorney, after receiving the letter, wrote back to defendant, saying that he would wait. After waiting a while, in consequence of this (defendant's) letter, payment not being made, the demand was sued.

If upon this evidence, the plaintiff is entitled to recover then judgment is to be for him; if not, judgment to be for the defendant.

H. A. Tripp, for the plaintiff.

A. P. Wiswell, for the defendant, contended:

I. Outside of defendant's letter, the testimony shows no liability from defendant to plaintiff. There was no contract between them, but was one between the plaintiff and the hirer of the horse. Plaintiff never notified defendant that he was keeping the horse on his account. How did the horse become sick? The testimony does not show. If on account of fault of the hirer, he alone is liable for the keeping. The burden of proof is upon plaintiff. Randall v. Doane, 9 Gray 408. Story on Bail., § 389.

II. Defendant's letter created no legal liability, nor any obligation to pay a debt which had no legal or equitable foundation. Chit. Con. 34, 36, and notes. Many decided cases hold that where one, through mistake of the law, acknowledges himself under an obligation which the law does not impose, he is not holden thereby.

BARROWS, J.

The case as stated in the report is that the defendant owned the horse, for the board and keeping of which while sick and the expense of its removal when dead plaintiff brings this action under the following circumstances:

Defendant let the horse to one Devereux. The horse became diseased and sick while thus let, and Devereux left him with the plaintiff for care and cure. While plaintiff was keeping the horse defendant wrote him, informing him that he (defendant) owned the horse and inquiring about its condition, and saying that an uncle of Devereux would pay his bill. After the horse died plaintiff's attorney wrote defendant, demanding payment of the bill. Defendant answered, " Please not make any costs on it (the bill) as I will call and settle the same soon." Plaintiff's attorney thereupon wrote defendant saying he would wait. After waiting a while, in pursuance of this arrangement, payment not being made, this suit was brought. Defendant denies his liability to pay for the expenses of his horse thus incurred, and contends that there was no valid consideration for his express promise to do it. Unless there was an original liability on his part by reason of the circumstances and acts of the parties while the plaintiff was furnishing the care and board of the horse, it may well be doubted whether a valid consideration is shown for the promise in defendant's letter to the attorney.

We do not find it necessary to decide that question, for, as the case is stated, we think, upon natural and legal presumptions, it is made to appear that the plaintiff might well charge the keeping of the horse to its owner, and that the defendant would be liable for the bill without any express promise.

The first inquiry is, what were the respective rights and duties of the defendant and Devereux under the circumstances disclosed?

" If a man hires a horse," remarks Lumpkin, J., in Mayor of Columbus v. Howard, 6 Ga. 213, " he is bound to ride it moderately and to treat it as carefully as any man of common discretion would his own, and to supply it with suitable food." Thus doing, if the animal falls sick or lame, without any want of ordinary care on the part of the hirer, he is not responsible to the owner for the consequences. The owner of the animal must bear them.

But, if the horse falls sick or becomes exhausted, the hirer is bound not to use it. And if he does pursue his journey and use it when reasonable care and attention would forbid, he would make himself responsible to the owner for that act. Bray v. Mayne, Gow. 1, (5 E. C. L. R. 437.)

On the other hand, one who lets a horse impliedly undertakes that...