
    Phinehas Whiting versus William Sullivan.
    The law will not imply an assumpsit where there is an express promise; no? against the express declaration of the party, made at the time of the supposed implied assumpsit.
    
    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 been cheated in the bargain; that the plaintiff, after reading the letter, or looking at it long enough to read it, said to the defendant’s messenger, “ So, Mr. Sullivan has sent me his horse to keep that the messenger replied, “ No, he has returned your horse to you, and will have nothing more to do with him that a servant of the plaintiff’s then took the horse and carried him to the stable, the plaintiff standing by and not forbidding; that the saddle and bridle were brought back to the defendant; that the horse remained about a year with the plaintiff; and for his keeping, during that time, this action is brought.
    The judge directed the jury that they might presume, from the manner in which the horse was sent back, the declaration made to the plaintiff, and his receiving the horse, connected with the conversation which took place at the time of the purchase, that the defendant had a right, after trying the horse, to return him, if he did not answer the description given of him by the plaintiff; in which case they would find a verdict for the defendant; but if they believed the purchase to have been absolute, without any condition, or without any right reserved to the defendant to return the horse, they might find their verdict for the plaintiff. But that, after the manner in which the horse was received by the plaintiff, they would consider whether he ought not to have sent the horse back to the defendant, or at least have notified him that he should charge him with the keeping, before he could entitle himself to keep him at the defendant’s expense.
    The jury returned a verdict for the plaintiff, contrary, as the judge observed, to the presumptions arising from the facts proved in the case.
    
      The defendant objected to that part of the judge’s direction, in which he instructed the jury that if they should be satisfied that the property of the horse was in the defendant at the time fat which the plaintiff demands compensation for his keep-[*109] ing, they ought to find a verdict for the * plaintiff; although, in fact, he kept the horse without any request from the defendant, and even against his express refusal to be chargeable.
    And now, at this term, Ward and Stearns, of counsel for the plaintiff,
    being called on to support the verdict, argued that from the facts the defendant had no right to disclaim the horse; but whether he had or had not, was for the jury to decide upon the evidence, and they having settled that point in the plaintiff’s favor, might well hold the defendant chargeable in this action. The property in the horse having been found to be in the defendant, in another action between these parties, the jury in this case might well presume the defendant willing to pay for his support, and on this ground they found their verdict for the plaintiff.
    
      Bigelow, for the defendant,
    was stopped by the Court. And the action being continued nisi, the opinion of the Court was delivered at Boston, the succeeding November term, by
   Parsons, 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 placed ' in the custody of the plaintiff by the defendant, declaring that he had returned to the plaintiff his own horse; and when the plaintiff said, that the defendant had sent his horse to be kept, the defendant, by his agent, said, “ No, he has sent you your horse, and he will have nothing further to do with him.” This declaration of the defendant is directly repugnant to the implied promise supposed, and the law will not therefore imply it. In ' this [ *110 ] * opinion our brother Barker, before whom the cause was tried, upon consideration of the case, fully concurs.

It was imprudent in the plaintiff to take the horse, if he was determined to hold the defendant to his bargain. Perhaps he might think the defendant’s right to rescind doubtful, and might choose to keep the horse until that question was decided ; and if it should be decided against him, then he would be keeping his own horse; otherwise he might attempt to charge the defendant. On this view the plaintiff must fail; for whether the defendant impliedly promised or not, at the return of the horse, could not depend on a subsequent event. He must have impliedly promised when the horse was returned, or never after. Such a contingent agreement might have been expressly made by the defendant, but cannot be implied.

The verdict must be set aside, and a new trial granted.  