x999-1" type="majority"> Peaslee, J.

It could be found from the evidence that the plaim tiff was possessed of information as to the location of Canadian lands which were for sale, that the defendants desired this information and he furnished it to them at their request, and that they promised to pay him fifty cents per acre if they bought the land. Subsequently it developed that a part of the land was not for sale, and a little later the defendants bought the balance at a reduced price. From this it could be found that the defendants had received value from the plaintiff, at their request, and were bound to pay for it. It might well be argued that the amount was then uncertain, since the lands bought were presumably less valuable than the average of the whole tract to which the express promise related. But the plaintiff also testified that in a reasonable time thereafter he asked Annis for the money, and Annis promised to have the matter attended to. This would warrant a finding that the minds *480 of the parties met upon the proposition. There was therefore sufficient evidence of the existence of the contract, as against Annis, aside from any admissions contained in the new promise of 1909. In this state of the proof, the chief question argued by the defendants does not arise. The existence of the original undertaking is shown, without reference to the new promise; and the new promise could be found to refer to this undertaking and no other. The plaintiff testified that within six years he asked Annis for “that commission, ” and that Annis promised to pay it. This is sufficient evidence that at the time the new promise was made both parties had in mind the $350 for which this suit is brought. The plaintiff was entitled to go to the jury upon the question of Annis’ original undertaking to pay $350 and of his new promise to pay the same sum. Kittredge v. Brown, 9 N. H. 377.

There is no evidence of a new promise by Johnson. That alleged to have been made by Annis did not bind his associate. There is no evidence that Annis was Johnson’s agent for this purpose, or that he undertook to act in such capacity. It is unnecessary to inquire as to the sufficiency of the evidence to show an original undertaking by Johnson; for if there was one, action upon it is barred by the statute. As to him, the nonsuit was properly ordered and he is entitled to judgment; but as to Annis there must be a new trial.

Exceptions sustained in part.

All concurred.

Citation profile

Relationships

How this case has been treated — in progress