Opinion
Spring Sessions, 1845.
McFee and Houston, for plaintiff.
Cullen for defendant.
THIS was an appeal from the judgment of John M. West, Esq., a justice of the peace for Sussex county, in an action of assumpsit for the hire of a hawser and anchor procured by plaintiff for the defendant's vessel in distress. The declaration was in assumpsit with the common money counts. Plea the general issue.
It appeared in evidence that the defendant below being the owner of the schooner Betsey Richards, which was stranded on Cape Henlopen, entered into a contract with the plaintiff, agreeing to pay him $250 for getting her off and delivering her in Lewes creek, and that he also agreed to furnish the necessary anchors, cables, c. The contract was signed by plaintiff as Wm. S. Maull Co., though the agreement was made with him alone. The plaintiff got the vessel off the beach, but a storm coming on he was forced to part his cables and run up the bay, and again run her ashore. Whilst up the bay captain Maull hired a hawser and kedge anchor from the agent of the insurance offices and returned to Lewes, bringing the hawser and anchor with him. The person of whom these were hired demanded $30 of Maull for the hire, and placed the claim in the hands of another agent of the underwriters to sue Maull. Upon which Maull brought this suit against Bradley and recovered.
Cullen, for defendant below contended, and the Court ruled: —
1. That in assumpsit, under the count for money paid, no recovery can be had upon a legal liability to pay money for defendant, or even upon giving bond for the payment. A payment must actually be made. (3 East. 169; 2 B. A. 51; 1 East. Rep. 1; 2 Saund. Pl. Ev. 192; 8 Johns. Rep. 202; Chit. Cont 591; 3 Wend. R. 79.)
2. That if the contract was in fact made with the plaintiff below and other persons, either jointly or as partners, the plaintiff could not recover in his own name. (8 Wend. Rep. 542: Chit. Plead, 6, 8; 2 Saund. Pl. Ev. 249, 272; 6 Com. L. Rep. 451.)
Verdict for defendant.