Whiting v. Sullivan
Massachusetts Supreme Judicial Court
Assumpsit for keeping the defendant’s horse. Upon the general issue pleaded, the action was tried before Parker, J., from whose report it appears that the defendant had purchased the horse of the plaintiff, after a conversation between them, in which the defendant enumerated the qualities he wanted in a horse, and the plaintiff declared his horse to possess such qualities; that after trying the horse, and being dissatisfied with him, the defendant sent the horse to the…
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Assumpsit for keeping the defendant’s horse. Upon the general issue pleaded, the action was tried before Parker, J., from whose report it appears that the defendant had purchased the horse of the plaintiff, after a conversation between them, in which the defendant enumerated the qualities he wanted in a horse, and the plaintiff declared his horse to possess such qualities; that after trying the horse, and being dissatisfied with him, the defendant sent the horse to the plaintiff, with a letter, in which he expressly * declared that he returned the horse to the plaintiff, [*108] because he had…
1Opinion of the CourtParsons, C. J.
Upon looking into this case, it is extremely clear that the action cannot be maintained, unless upon the implied assumpsit of the defendant; for it is not pretended that there was any ex press promise by him to pay for keeping the horse. And we are satisfied that from the facts reported by the judge, the law will not imply an assumpsit.
As the law will not imply a promise, where there was an express promise, so the law will not imply a promise of any person against his own express declaration ; because such declaration is repugnant to any implication of a promise. In this case the horse was…
2Cited by41 opinions
- &198tna National Bank v. . Fourth National BankNew York Court of Appeals · 1871
- Hawkins v. United StatesSupreme Court of the United States · 1877
- Earle v. CoburnMassachusetts Supreme Judicial Court · 1881
- Galloway v. HolmesMichigan Supreme Court · 1844
- Osborn v. BellNew York Supreme Court · 1848
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