Devecmon v. Shaw

Bryan, J., delivered the opinion of the Court. John Semmes Devecmon brought suit against the executors of John S. Combs, deceased. He declared in the common counts, and also filed'a bill of particulars. After judgment by default, a jury was sworn to assess the damages sustained by the plaintiff.

The evidence consisted of certain accounts taken from the books of the deceased, and testimony that the plaintiff was a nephew of the deceased, and lived for several years in his family, and was in his service as clerk for several years. The plaintiff then made an offer of testimony, which is thus stated in the bill of excejffions: “That the plaintiff took a trip to Europe in 1878, and that said trip was taken by said plaintiff, and the money spent oh said trip was spent by the said plaintiff ²⁰¹ at the instance and request of said Combs, and upon a promise from him that he would reimburse and repay to the plaintiff all money expended hy him in said trip ; and that the trip was so taken and the money so expended hy the said plaintiff, hut that the said trip had no connection with the business of said Combs ; and that said Combs spoke to the witness of his conduct in h'eing thus willing to pay his nephew’s expenses as' liberal and generous on liis part.” On objection, the Court refused to permit the evidence to be given, and tbe plaintiff excepted. It might very well be, and probably was the case, that tlie plaintiff would not have taken a trip to Europe at his own expense. But whether this he so or not, the testimony would have tended to show that the plaintiff incurred expense at the instance and request of the deceased, and upon an express promise by him that be would repay the money spent.

It was a burden incurred at the request of the other party, and was certainly a sufficient consideration for a promise to pay. Great injury might he done by inducing persons to make expenditures beyond tlieir means, on express promise of repayment, if the law were otherwise. It is an entirely different case from a promise to make another a present; or render him a