a servant to government; that he was not personally liable to an action for their amount. Brown v. Austin, So also where the plaintiff brought indebitatus assumpsit against the defendant for his fees as a witness in the con- Mass. T. R. 208. tested election of J. B. Varnum, of Middlesex: It appeared that Mr. Varnum was elected a representative in congress, and that a petition was presented to that body, praying that they would investigate the election. In consequence of this petition the defendant was constituted agent for the purposes of this investigation, and was authorized to take depositions touching the election. In pursuance of this authority, the defendant summoned the plaintiff to appear before a magistrate for the purpose of taking his deposition. The plaintiff appeared; and for this service brought his action. But the court held, that the action would not lie ; because it appeared that the defendant, in this transaction, was acting as agent for the public, in a business of great national concern. Ibid. Nor will it make any difference, though the services were performed at the special instance and request of the person per Sewall, J. so acting as agent; for although, in common and ordinary cases, the law implies a promise and personal obligation, as necessarily resulting from services performed on request, yet such implication never arises, where it appears that the request was made by a public agent, acting in a public concern. If a master once sends his servant to obtain goods for him on trust, for which the master afterwards pays; if the servant afterwards fraudulently takes up goods from the same person, which he converts to his own use; the master is liable; for, by paying the first debt, he gave the servant a credit, and ought to be charged. Hazard v. Treadwell, 1 Esp. Rep. 350. In an action on a farrier's bill, it appeared, that the defendant, by an agreement with his groom, allowed him five Precious v. Abel, guineas a year, for which he was to keep the horses properly shod, and furnish them with proper medicines when 3 Selw. 962. necessary. Lord Kenyon said, that it was no defence to the action, unless the plaintiff knew of this agreement, and expressly trusted the groom; that if the servant buys things which come to the master's use, the master should Kendal v. Andrews, III. B. R. take care to see them paid for ; for a tradesman has nothing to do with any private agreement between the master and servant. But if the master never had any previous dealing with 1 Esp. Dig. 115, cit. the tradesman, but the tradesman's dealings have all been Sittings E. T. 28 G. With the servant, whom the master has regularly paid; in that case, the master shall not be charged. As here, where the action was for oats and hay, furnished to defendant's horses, but plaintiff had had no dealings with the master, but with the coachman, whom the master paid monthly: The plaintiff never applied to the master during the time, and the demand was of a year's standing. 3 Selw. 962. Hiscox wood, 4 Esp. Rep. 174. 3 Selw.962. So, where an express authority by the master is wanting, and, from the nature of the case, an authority cannot be implied, the master is not liable. Hence, where the chaise of the master had been broken v. Green- by the negligence of his servant, and the servant desired a coachmaker, who had never been employed by the master, to repair it; which was accordingly done, and the master refusing to pay the amount of the bill sent in by the coachmaker, he insisted on retaining the chaise, as a lien; Lord Ellenborough, Ch. J. was of opinion, that the coachmaker was not entitled to retain it; for, whatever claim of that sort he might have, he must derive it from legitimate authority; that unless the master had been in the habit of employing the tradesman in the way of his trade, it should not be in the power of the servant to bind him to contracts, of which the master had not any knowledge, and to which he had not given any assent, Hoare v. Dawes & al. 1 Esp. Dig. 115. Ibid. XII. Of assumpsit in reference to partners. To make a person liable as a partner, there must be an agreement to share in all risques of profit or loss. And if many employ a common agent, (as a broker) for a particular purpose, who makes a joint purchase, this shall not make them partners, so that they can be sued as such. It is essential, therefore, to make a person subject as a partner, that he is interested in the profits; that is, that the advantage that he derives from the trade is casual, as depending on these profits; for if it is certain and defined, he is not a partner. 2 Bl. Rep. 998. 1 Esp. Dig. 115. As here, where defendant had been partner with one Robinson, but, the partnership being dissolved, defendant Grace v. Smith, agreed to let a sum of four thousand pounds remain in the trade, at legal interest, for seven years, and received also an annuity of three hundred pounds per annum, for the same time ; all of which was secured by Robinson's bond. It was held, that this should not make defendant a partner, and subject to Robinson's contracts; for he had no concern with the business, and the annuity and interest were certain, and independent of the profits. Sitt. Hil. Term, 1775. 1 Esp. Dig. 116. But where defendant, in this action, had been partner with one Brooke, and they agreed to separate, and Brooke Bloxham v. Pell, agreed to give him his bond for twenty-four hundred and quot. in Bl. Rep. 999. eighty-five pounds, with interest; (which sum had been brought by defendant into trade) and an annuity of two hundred pounds, for seven years, if Brooke so long lived; as in lieu of the profits of the trade; and defendant had, at all times, liberty to inspect Brooke's books ;-defendant was adjudged to be a partner, and liable; for the charge has reference to the profits; it was casual, as depending on Brooke's life; and his right to inspect the books was that of a partner. XIII. Of assumpsit in reference to executors and administrators. ་ Assumpsit lies against an executor or administrator, on 1 Esp. Rep. 120. a promise by the testator. So he may also maintain this action on a promise made Ibid. to the testator. Foster v. Hooper, At common law, no action was maintainable against the executor or administrator of a deceased joint promissor, 2 Mass. T. R. 572, whom the other promissors survived; but in such case the promise or contract survived against the other promissors alone, and thereby the estate of the joint promissor, deceased, was wholly discharged. 1800, a& 3. But now, by statute, it is enacted, that the goods and estate of each deceased debtor, in every joint contract there- Mass. Stat, Feb. 26, after to be made, whether obligation, covenant, or other instrument under seal, promissory note, memorandum in writing, or any other contract, express or implied, or in any 2 Bl.Com. 444. Ibid. 445. Ibid. 445, 446. ■ Esp. Dig. 93. I Roll. Abr. 23. Cro. Eliz. 19. judgment on any contract thereafter to be made, shall be liable in the hands of his executors and administrators, for the payment thereof, in like manner; and the creditor shall have the same remedy, and may have and maintain an action at law against such executors and administrators, in the same manner as if such contract had been joint and several. XIV. Of assumpsit in reference to the consideration. Whatever constitutes the price or motive of a contract is called the consideration. A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law; for ex nudo pacto non oritur actio. As if one man promises to give another a hundred pounds, here there is nothing contracted for or given on the one side, and therefore there is nothing binding on the other. And however a man may or may not be bound to perform it, in honour or conscience, which the municipal laws do not take upon them to decide; certainly those municipal laws will not compel the execution of what he had no visible inducement to engage for. The consideration must also be valid; for if it be frivolous or groundless, it will not support an action. As if A promises to B a sum of money, in consideration that B would make him an estate at will; this is a void promise, and will not support an action; for B may instantly determine his will. And for the same reason, a promise to pay, merely in conLutwich v. Hussey, sideration of unspecified forbearance, is void, and will not uphold this action. For the forbearance might be but for an hour, which would be a forbearance, and yet would be an inadequate and frivolous consideration. Treford v. Holmes, Beauchampv.Neggin, Therefore, where the consideration is forbearance, the time of forbearance should be a convenient one, and set forth, to be left to the jury. Upon this ground a promise of any thing for a service already performed, without view to reward, is void. Though where the service has been done at the request of the person making the promise, it shall be good to support this action. But a promise to a servant, in consideration of past ser- 1 Esp. Dig. 94. vices, has been held to be good. So also the consideration must not be illegal. For this action will not lie where the consideration, on which it is founded, is an illegal act. Ibid. 89. Allen v: Rescous, As where plaintiff gave to defendant 20s. in consideration of which, he undertook to beat J. S. out of such a close, 2 Lev. 174. or to pay 40s. He did not do it, whereupon plaintiff brought assumpsit for the 40s., and the action was adjudged not to lie, the consideration being an unlawful act. 1 Esp. Dig. 89. And though the consideration be but in part unlawful, yet it shall vitiate the promise, which is founded in the consideration taken together. Though the plaintiff in this action has not been a party Ibid. go. to the illegal transaction, yet where the assumpsit has arisen from it, he cannot recover. Stackpole v. Earl, For where defendant promised the plaintiff a sum of money to procure the purchaser of an office; plaintiff pro- 2 wils. 133. cured the purchaser, and then brought his action for the money promised; but it was adjudged not to lie, because the sale of an office was an illegal transaction, and consequently the assumpsit, founded on it, was void. Waymell v. Read & al. by Kenyon, Ch. J. in So where the vendor was concerned in giving assistance to the vendee to smuggle the goods, by packing them in T. Rep 599, cited the manner most suitable for, and with the intent to aid that purpose; although the vendor was a foreigner, resident abroad, and the sale and delivery of the goods were completed abroad; it was holden, that the vendor could not resort to the laws of England, to give effect to his agreement. But where the transaction is not in itself unlawful, no subsequent illegal use of the subject of it shall destroy the assumpsit. I Esp. Dig. 90. Holman v. Johnson, As where plaintiffs sold tea to defendant abroad, which they delivered at Dunkirk; though this tea was for the Cowp. 341. purpose of being smuggled into England, and that known to the plaintiffs at the time; yet they not being concerned in the smuggling, and it being a fair sale as to them, they were allowed to recover the price of the tea, in England. |