Couch v. Hooper.
March, 1831.
(Absent Coalter, J.)
Assumpsit — Conditional Promise to Pay Debt of Another — Condition Must Be Strictly Performed. — A. is prosecuting debt against B. the surety of C. and C. ’s father agrees in writing to pay the debt with interest, if A. will dismiss his suit against B. at A.’s own costs; A. dismisses his suit, generally: in assumpsit by A against the father, upon his conditional promise to pay the debt; Held, A. was bound to perform the condition strictly, in order to entitle himself to enforce the promise, and having dismissed his suit generally instead of at his own costs, he cannot recover upon the promise.
Same — Same—Averment. — And though the father subsequently approved A.’s dismission of his suit against the son’s surety, generally, yet A. not having averred such subsequent ratification in his declaration on the father’s promise, that fact cannot avail him.
Assumpsit, in the circuit court of Buckingham, by Hooper against Couch, upon a special promise, which the declaration stated thus: Allen Couch (a son of Couch, the defendant in this action) and one Coughlan, his surety, executed a bond to Childers for 135 dollars, which Childers assigned *to Hooper, who brought suit upon it, against Coughlan, the surety ; and pending that suit, Couch, the defendant in this action, wrote a letter to Hooper promising to pay him, within two years, from the date of the letter, the amount of the debt claimed of Coughlan as the surety of Couch the son, with interest from the date *429of the bond, upon Hooper’s dismissing the suit he had brought for it against Coughlan the surety, at his Hooper’s own costs ; upon the faith of which letter and the promise therein contained, Hooper did dismiss his suit against Coughland, at his own costs ; of which Couch, the defendant in this action, had notice; by reason whereof, Couch became bound to pay Hooper, the plaintiff, the amount of the said debt with interest; and being so liable, in consideration thereof, assumed upon himself and promised Hooper, to pay him the same &c. Couch pleaded the general issue. And at the trial, he filed a demurrer to the evidence, in which Hooper joined.
The evidence was, 1. The letter written by the defendant to Hooper, containing the promise laid in the declaration (the contents whereof were precisely as the declaration stated them) with proof of the genuineness of the letter. 2. Proof, that the letter was sent to Hooper by Coughlan’s special bail in Hooper’s action against him ; that Hooper refusing, at first, to accede to the proposition it contained, the letter was held by the bearer, until about six months after, when Hooper acceded to the terms, and thereupon the letter was delivered to him ; and that the defendant was informed of Hooper’s rejection of the proposition when first made to him, and of his acceding to it afterwards, of the delivery of the letter to him, and of his dis-mission of his suit against Coughlan, generally, and gave his approbation to that late delivery of the letter, and to this dismission of his suit by Hooper (but of these facts the evidence, to say the least, was very doubtful). 3. The record of Hooper’s suit against Coughlan ; whereby it appeared, that Hooper dismissed that suit, not, however, at his own costs, according to the condition stipulated in Couch’s letter, but generally.
*The jury found for Hooper, subject to the opinion of the court upon the demurrer to evidence. The circuit court held, that the law upon the demurrer, was for the plaintiff, and gave Hooper judgment for the damages found by the verdict. Couch applied to this court for a supersedeas, which was allowed.
Johnson for the plaintiff in error; Daniel for the defendant.
BROOKE, P.
Upon the evidence adduced by Hooper, and demurred to by Couch, it clearly appears, that Hooper did not comply with the condition of the offer made him by Couch, to pay the debt specified in his letter making the offer. That condition was, that Hooper should dismiss the suit he was then prosecuting against Coughlan the surety of Couch’s son, at his Hooper’s costs. But instead of doing that, Hooper dismissed the suit generally, leaving the defendant in that suit to pay his portion of the costs. Nor can the supposed ratification of that dismissal of the suit, if established by the evidence (which is doubtful) avail Hooper ; since this matter is not alleged in the declaration, or put in issue by the pleadings : so that, if the suit had been dismissed generally, as it eventually was, upon the first tender of the letter of Couch to Hooper, the objection to such a dismissal of the suit would not have been obviated
The judgment is to be reversed, and judgment entered for the appellant.