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68 N.H. 31

36 A 552

Provenchee v. Piper

Supreme Court of New Hampshire

Decided June 5, 1894

Supreme Court of New Hampshire · decided 1894-06-05

Assumpsit. Trial by the court. On a Sunday in July, 1893, one Forest sold and delivered a horse to the defendant for §115, of which $15 was paid, and the balance was to be paid to the plaintiff, who had a mortgage on the horse for $100. Forest warranted the horse sound. It was unsound. On the same day, before making the trade, the defendant told the plaintiff he was about to make it, and was going after the horse, to which the plaintiff replied that he had no objection.

Relies on Sargent v. Usher · White v. Phelps · Robinson v. Gilman

Good law ✅— No negative treatment on recordhow we know

Decided 1894-06-05

How this case has been cited

Cited by 3 later decisions — most recently May 1954

3 state decisions

101894190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Chase, J.

¶1 At the beginning of the negotiations on Sunday, the plaintiff, by virtue of his mortgage, had the legal title to the horse, and Forest had the right to redeem it from the mortgage. P. S., c. 140, s. 19; Leach v. Kimball, 34 N. H. 568; Sargent v. Usher, 55 N. H. 287, 289. The Sunday contract between Forest and the defendant was designed by them to transfer to the defendant Forest’s right oniy. Neither party understood that the title of the horse passed, or that the plaintiff’s right as mortgagee was affected. The plaintiff’ declined to negotiate on that day, and did nothing that can be regarded as a waiver of the mortgage. He had the same title to the horse Monday morning that he had the previous day. White v. Phelps, 12 N. H. 382. The defendant purchased this title. In consideration of the defendant’s promise to pay the amount due upon the mortgage note, the plaintiff promised to release his interest in the horse, and fulfilled the promise. The plaintiff’s promise was a sufficient, consideration for the defendant’s promise. • Chit. Con. 46. Although the contract grew out of a transaction that took place on Sunday, it was wholly made on Monday, and is not affected by the statute (P. S., c. 271, s. 3) prohibiting the doing of business on the first day of the week. Stackpole v. Symonds, 23 N. H. 229.

¶2 The contract was not within the statute of frauds (P. S., c. 215, s. 2). It was not a contract for the payment of Forest’s debt, but for the purchase of the plaintiff’s interest in the horse. The fact that Forest’s debt would incidentally be discharged by the performance of the contract did not bring it within the opera *33 tion of the statute. Allen v. Thompson, 10 N. H. 32; Robinson v. Gilman, 43 N. H. 485; Britten v. Angier, 48 N. H. 420, 425; Lang v. Henry, 54 N. H. 57, 61.

¶3 The plaintiff’s and Forest’s contracts with the defendant being independent of each other, the former is not affected by a breach of the latter. So far as appears, the plaintiff’s representation concerning the horse was true.

¶4 Exceptions overruled.

Wallace, J., did not sit: the others concurred.
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