New-York, May, 1840.-Ehle v. Judson. tion with one James Blatherwick for the purchase of a farm, but not agreeing as to the price and terms of payment, abandoned the negotiation. Elisha Swift then treated with Blatherwick for the purchase of the farm on his own account, and induced Blatherwick to agree to accept from him a less sum, and also to reduce the amount of the cash payment to be made on the conveyance of the property. Swift told Blatherwick that he thought he should take the farm. The agreement, however, was by parol. In this state of the negotiation, Judson, the defendant in this cause, solicited Swift to give up his bargain, and consent to his becoming the purchaser upon the terms which Blatherwick had agreed to accept from him. The latter assented to the proposal, provided Judson would give him his note for $100, to pay him for his time and trouble in negotiating the purchase. Judson accordingly gave the note in question, and became the purchaser of the farm. Upon this state of facts, the defendant moved for a nonsuit, which was denied by the circuit judge, who held that this was the case of an executed consideration, the payee of the note had been put to trouble, and had by his address induced Blatherwick to reduce his demands for the farm, [ *98 ] which was an act beneficial to the defendant, upon which a promise to pay could be sustained; that no actual request from Judson to Swift to render the services performed was necessary to be shewn-that the law would imply a request. The jury, under the direction of the judge, found a verdict for the plaintiff, which the defendant now moves to set aside. B. Davis Noxon, for the defendant. J. A. Spencer, for the plaintiff. By the Court, BRONSON, J. The note was given on a past or executed consideration. It was to compensate Swift for what he had done in negotiating for the farm, and obtaining the offer of better terms than Blatherwick had proposed to accept when the defendant was in treaty for the purchase.. I am unable to see how this makes out a good consideration for the promise. Swift had not acted for the defendant, but for himself. The defendant had relinquished all idea of purchasing the farm before Swift commenced treating for it; and Swift neither acted at the defendant's request, nor with any view to his benefit: and beyond this, Swift had accomplished nothing, in a legal point of view. If a verbal contract had been completed, it would have been void under the statute of frauds. But he had not even made a void contract, if such an expression may be tolerated. He had only got an offer of terms from Blatherwick, and had told him he thought he should take the farm. The owner was under no obligation, not even honorary, to sell upon those terms, or to give Swift a preference over any other person, on whatever terms he might ultimately conclude to part with his property. New-York, May, 1840.-Ehle v. Judson. Services voluntarily rendered, though they may be beneficial to another, impose no legal obligation upon the party benefitted. Bartholomew v. Jackson, 20 Johns. R. 28. The services must be rendered upon request, Dunbar v. Williams, 10 id. 259; and in counting upon a past considera[99]tion, a request must, in general, be alleged. Comstock v. Smith, 7 id. 87. Parker v. Crane, 6 Wendell, 647. It is not necessary that there should be direct evidence of a request. This, like most other facts, may be established by presumptive evidence; and the beneficial nature of the services, though not enough when standing alone, may be very important in a chain of circumstances tending to establish the presumption. 1 Saund. 264, n. 1. Oatfield v. Waring, 14 Johns. R. 188. See also Doty v. Wilson, id. 378. But here the services were not beneficial to the defendant; and besides, we see that they were not and could not have been rendered upon request. Swift was not acting for the defendant in the nego tiation with Blatherwick, but for himself. We are referred to cases where it has been said that a moral obligation is a sufficient consideration to support an express promise. Stewart v. Eden, 2 Caines, 150. Doty v. Wilson, 14 Johns. R. 378. Lee v. Muggeridge, 5 Taunton, 37. But this rule must be taken with some qualifications. The moral obligation to pay a debt barred by the statute of limitations, or an insolvent's discharge, or to pay a debt contracted during infancy or coverture, and the like, will be a good consideration for an express promise. But a merely moral or conscientious obligation, unconnected with any prior legal or equitable claim, is not enough. 3 Bos. & Pull. 249, note. Smith v. Ware, 13 Johns. R. 257. Lawes' Plead. Assump. 54. 16 Johns. R. 283, note. But here the defendant was under no obligation of any kind to Swift. Nothing had been done at his request, or for his benefit. What Swift had done in negotiating for the farm was no more beneficial to the defendant, than it was to every other man in the state who might wish to buy a farm. The plaintiff has often failed upon an express promise, in much stronger cases than this. I will only refer to two or three. In Hunt v. Bate, Dyer, 272, the plaintiff had, without request, become bail for the defendant's servant who was imprisoned, to the end that he might go about his master's business; and the defendant afterwards promised to indemnify the plaintiff. After verdict upon this promise, the judgment was arrested, because, as the court said, "there is no consideration wherefore the defendant [*100] should be charged for the debt of his servant, unless the master had first promised to discharge the plaintiff before the enlargement and mainprize made of his servant, for the master did never make request to the plaintiff for his servant to do so much, but he did it of his own head." In Freer v. Hardenbergh, 5 Johns. R. 272, the plaintiff had, New-York, May, 1840.-Ehle v. Judson. without request, made valuable improvements upon the defendant's land, and the defendant afterwards promised to pay for those improvements; but the promise was held to be a nudum pactum, and judgment was rendered for the defendant. The case of Smith v. Ware, 13 Johns. R. 257, was also upon an express promise, and is equally decisive against maintaining this action. New trial granted. BLESSING vs. Davis. In a declaration in slander charging the defendant with having adopted certain slanderous words used by another, the words spoken in the first instance must be set forth; it is not enough to say that the speaker did charge and impute to the plaintiff the crime of perjury. THIS was an action of slander, tried at the Albany circuit in April, 1837, before the Hon. JAMES VANDERPOEL, then one of the circuit judges. The several counts of the declaration (among other charges of direct and particular sets of confessedly slanderous words laid in various ways) sought to fix a slander upon the defendant as having adopted certain words previously used by one Batterman, and saying they were true. In order to introduce these words, the declaration recited the trial of a cause in a justice's court wherein the plaintiff was a party, and that an affidavit was made by him as the ground of an appeal, and averred that Batterman, in speaking of the cause tried, and the affidavit, &c. " did charge and impute to the said plaintiff, the crime of perjury in making said affidavit." It then went on to state that the defendant, speaking of the same cause, affidavit, &c. and of "the charge made by Batterman, said, "it is true, and [101] adding the adoption of the words in various forms, among which were these: "What Batterman said about Blessing (the plaintiff's) swearing false, is true." On the trial, the plaintiff, among evidence tending to prove the directly slanderous charges as stated in the various counts, offered to prove the slander uttered by Batterman, which was objected to because the words were not particularized in the declaration. The judge allowed the objection, the plaintiff excepting; and the jury found for the defendant, on the other evidence, on the ground, as they stated, that the plaintiff had failed in proving his declaration. The plaintiff moves for a new trial. J. Van Buren, for the plaintiff. S. Stevens, for the defendant. New-York, May 1840.-Blessing v. Davis. By the Court, COWEN, J. It is conceded that, had the defendant been charged as the originator of the slanderous words, the declaration would be bad in substance, by reason of its generality. Ward v. Clark, 2 Johns. R. 10, 13. But it is denied that the same particularity is requisite where the imputed slander consists in adopting the words of another. We can perceive no reason for the distinction. In the first case the object is to see whether the words imputed to the defendant by the declaration are slanderous in their character, and give notice to him so that he may know against what he is to defend himself. The same reasons obviously apply to the latter. It is supposed that the only mode in which the defendant could avail himself of the objection, was by demurring or moving in arrest. And this would generally be so of counts entirely defective. In such case, if the defendant take issue, the action is maintained at the circuit, if the proof come up to it. But it is otherwise where the plaintiff states a sufficient cause of action, in the same count with another cause deficient in substance. [*102] The course then may be to reject the bad as surplusage, disallow ing all proof in relation to it at the trial, and putting the plaintiff to sustain the good part. Douglass v. Satterlee 11 Johns. R. 16. That was done here. New trial denied. CASE US. HALL & VAN ELTEN. Want of title in the vendor of personal property [is no defence to an action brought for the recovery of the purchase money, where there has been no recovery by the owner against the purchaser. If the vendor fraudulently represents himself to be the owner, when he knows to the contrary, such facts may be set up in bar of a recovery; or it seems an action on the case may be brought against the vendor. THIS was an action of assumpsit, tried at the Tompkins circuit in September, 1839, before the Hon. ROBERT MONELL, one of the circuit judges. The plaintiff read in evidence two promissory notes made to him by the defendants for the sum of $424,83. The defendants under a notice given. with the plea of the general issue offered to prove that the notes were given for lumber purchased by them of the plaintiff, who had cut the same on land belonging to Edmund Wilkes; that the plaintiff had a contract for the land, but had not paid for it, and had not any right to cut the timber; that the defendants sold the lumber thus purchased by them, but that after such sale New-York, May, 1840.-Case v. Hall. Wilkes gave them notice that the lumber belonged to him, demanded it, and told them that they would be held responsible for it. The defendants admitted that no recovery by Wilkes against them had been had, and that no suit had been commenced by Wilkes against them. The counsel for the plaintiff objected to the admissibility of the evidence and it was rejected by the judge under whose direction the jury found a verdict for the plaintiff. The defendants move for a new trial. The cause was submitted on written argu ments. *J. M. Parker, for defendants. C. Humphrey, for plaintiff. [103] By the Court, NELSON, Ch. J. There is no doubt if the vendor fraud ulently represents the goods sold to be his own, when he knows them to belong to a stranger, an action on the case lies to recover damages therefor, though the real owner has not recovered the property, nor the vendee suffered any actual damage. 1 Show. 68. Cro. Eliz. 44. 1 Salk. 210, 211. 1 Ld. Raym. 593. Selw. N. P. 482, 483, and cases. 2 East, 448, n. Ross on Vendors, 334. And then upon the case of Becker v. Vrooman, 13 Johns. R. 302, the same matter might be admissible by way of defence for the purpose of reducing or extinguishing the claim for the purchase money. See also 15 Johns. R. 230, and 8 Wendell, 109. Where, however, the vendee relies on the warranty of title, express or implied, there must be a recovery by the real owner before an action can be maintained. This is in the nature of an eviction, and is the only evidence of the breach of the contract in analogy to the case of covenants real. Vibbard v. Johnson, 19 Johns. R. 77. 1 id. 274, 517. 6 id. 5. 13 id. 224. 5 Wendell, 535. Ross on Vendors, 334. In Vibbard v. Johnson, it is true, that the purchaser knew the property had been claimed by a third person, but that fact has never been regarded as material to the decision of the case; nor is it noticed in the opinion delivered by the court. On the contrary, the right to recover the purchase money is put upon the broad principle, that the only competent evidence of a breach of the implied warranty of title, was a recovery at law. It was likened to a demise of a house, where the tenant attempted to defeat the recovery for rent by denying the title of the lessor, and claiming to have paid it to C., the owner. The principle is well sustained by analogy, and, I think, just in itself. In case of a breach of warranty, the measure of damages is the purchase money and interest. Now, it would be highly inequitable to permit the vendee to retain *the possession, or enjoy the use of the prop- [*104] erty thus acquired, and put his vend or at defiance. Possibly the |