
    Timothy Downing vs. Abiezer S. Freeman.
    A promise to pay a debt implied by law remains in force, although through the fraud and imposition of the promiser the credit was originally given to a third person.
    Where one witness testifies affirmatively, that certain words were spoken in a conversation ; and another testifies that they were not, and relates other words spoken at the same time inconsistent with those testified to by the first witness; and both witnesses are entitled to equal credit; the words stated by the first witness are not to be considered as proved.
    This was an action of assumpsit brought to recover a bill for horse keeping, and was tried at the March term of the Court of Common Pleas, 1836, before Whitman C. J.; and came before this Court on exceptions to the ruling of the Judge. The plaintiff proved by one Andrews, that he was called on by the defendant to take a lame horse to the plaintiff’s, which he did ; that he went in a disguise furnished by the defendant; that the horse was said to belong to a Mr. White ; that he told the plaintiff, when be took the horse to him, that he, Andrews, owned it, and that his name was Stearns ; that he wanted the horse taken care of, and he would pay for the keeping. Andrews further testified that the course of proceeding by him taken was with the knowledge and at the request of the defendant; that he, the witness, was a minor; and that the defendant said, that he and White would stand between him, Andreivs, and all harm for his doings. After the plaintiff discovered these facts he returned the horse to Freeman’s stable.
    The defendant then called one Gower, as a witness, who testified, that in a certain conversation the plaintiff said, that when Andrews brought the horse be knew him.
    The plaintiff then called another “witness, one Hodgkins, who testified, that he heard the same conversation, which the last witness did ; and that what the plaintiff said, was, that he saw Andrews after he had kept the horse, and then knew him to be the same who brought the horse; and that the conversation was not as the other witness had stated.
    Upon this evidence, the Judge charged the jury, that if they were satisfied, that the plaintiff was imposed upon by Andrews, and that the defendant ordered the horse to be carried there for the purpose of imposing upon the plaintiff, or actively urged on the imposition, the plaintiff would be entitled to recover, unless they should be satisfied from the testimony of Gower, that no imposition was practised, by reason of the plaintiff’s knowing Andrews at the time he brought the horse ; and also, that where one of two witnesses, both equally credible, testify to a fact, and the other expressly contradicts the testimony of the other, the fact would be considered as not proved ; and that as Hodgkins testified contrary to the testimony of Gower, they would consider whether the testimony of Gower was not controlled by the testimony of Hodgkins. Whereupon the jury returned a verdict for the plaintiff. To this instruction the defendant excepted.
    
      Dunn, for the defendant, submitted the case without argument.
    
      J. C. Woodman, for the plaintiff, submitted on his brief.
    
      He argued, that Freeman sent the horse to be kept at Downing’s, and was liable on an implied promise. He was the principal in the whole transaction, and if others were liable also, that could only he taken advantage of by plea in abatement. Rushy v. Scarlett, 5 Esp. R. 76; 1 Com. on Con. 23S; and the defendant then being unknown to the plaintiff makes no difference. He for whose interest a parol promise is made may maintain an action. Woodman cited the following authorities : Arnold v. Lyman, 17 Mass. R. 405; Kelly v. Munson, 7 Mass. R. 319; Greely v. Bartlett, 1 Greenl. 172; Felton v. Dickinson, 10 Mass. R. 287 ; TJpton v. Gray, 2 Greenl. 373 ; Lamb v. Clark, 5 Pick. 193 ; Jones v. Hoar, 5 Pick. 285.
   After a continuance the opinion of the Court was drawn up by

Weston C. J.

The defendant sent a horse in his possession, whether his property or not, to the plaintiff’s stable to be kept. If by implication the plaintiff may have undertaken to keep the horse on the credit of Andrews, under the assumed name of Stearns, that undertaking having been obtained by fraud and imposition, brought about by the contrivance and procurement of the defendant, was not binding upon the plaintiff. The latter is then remitted to his right to maintain assumpsit against the defendant, upon his promise implied by law, for keeping the horse at his request, through the agency of Andrews. And if upon the facts, Andrews was also liable, or White, the owner of the horse real or pretended, the defendant should have pleaded in abatement.

The case was very fairly stated to the jury, by the presiding Judge. The conversation of the plaintiff, as testified to by Grosvenor, best accords with his acts. He would hardly have yielded to the imposition, if he had not been deceived. If Gros-venor was right, the other witness, Gowen, misunderstood a part of the conversation, and thus the discrepancy between them may be accounted for. But if the contradiction was not susceptible of explanation, and the witnesses were equally credible, and there were no other circumstances to incline the scale, the testimony of each would be neutralized, and the case left as it was before.

Exceptions overruled.  