Opinion
July Term, 1898.
William H. Wood, for the appellant.
Charles Morschauser, for the respondent.
The plaintiff, a resident of Dutchess county, purchased a steamship ticket for twenty-eight dollars, and sent it, together with a draft for five dollars, to one Francis Connelly, in Ireland, to enable him to come to New York. It was the intention of the plaintiff to lend the money represented by the ticket and the draft to Francis Connelly, and have him repay it when he came to this country. The defendant, who is a brother of Francis Connelly, obtained the ticket from him in Ireland, and with it procured passage to America. Upon his arrival in New York, being told by the plaintiff that he was not the man to whom the ticket and money had been sent, the defendant answered that he knew it, but would pay the plaintiff the money.
It also appears, without contradiction, that the plaintiff subsequently paid out small sums of money at the request of the defendant, chiefly for articles of clothing.
This action was brought to recover the amount represented by the passenger ticket, draft, and these other expenditures.
On the trial, the defendant did not deny the plaintiff's statement that he had promised to pay for the steamship ticket and the amount of the draft; but he gave testimony which shows that there was no consideration whatever for any such promise on his part. He stated, in substance, that he obtained the ticket from his brother, Francis Connelly, upon an agreement to send Francis a similar ticket when he got to this country. This agreement he kept, but the ticket did not reach Francis in season for him to use it, and the defendant subsequently gave him its value in money.
Taking into consideration the testimony of both parties as to the matters concerning which there is no disagreement between them, it is not difficult to perceive what was the true nature of the transaction. The plaintiff loaned to Francis Connelly money enough to bring him to America, putting the loan chiefly in the form of a passage ticket. Francis Connelly receiving the money in this form, in turn loaned it to the defendant upon his agreement to repay it in like form. The defendant offered to repay it in such form, and has actually repaid it in cash. At no time has he occupied the relation of a debtor to the plaintiff so far as this ticket is concerned; the defendant was simply a borrower from Francis, who, in turn, had been a borrower from the plaintiff. The defendant's promise, therefore, to pay the plaintiff for his passage to America was wholly without any consideration to support it.
As to the draft of five dollars, the defendant's promise to pay that was equally without consideration, the defendant's debt being due to Francis Connelly, from whom he must have obtained it.
It follows that there must be a modification of the judgment, so as to deduct the amount paid for the steamship ticket and draft from the total sum recovered by the plaintiff as damages.
The judgment should be modified by reducing the amount recovered by the plaintiff as damages from forty dollars and seventy cents to seven dollars and seventy cents, and as thus modified affirmed, without costs of this appeal or the appeal to the County Court to either party.
All concurred.
Judgment of the justice of the peace and that of the County Court modified by reducing the amount recovered by the plaintiff as damages from forty dollars and seventy cents to seven dollars and seventy cents, and as thus modified affirmed, without costs of this appeal or the appeal to the County Court to either party.