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Smith, 2 Johns. 52. Though the promise be in a note, the defendant may shew that there was not a sufficient consideraPearson v. Pearson, 7 Johns. 26; Shoemaker v. Rosa c. 17 Id. 301. If it appear that a parent from love and natural affection promised to give his child money or a chattel, such a promise cannot be enforced at law. Fink v. Cox, 18 Johns. 148.
2. What consideration is insufficient; what is sufficient.
It is a known rule of law that to make a promise obligatory there must be some benefit to the party making it or some detriment to the party to whom it is made. Jones v. Ashburnham, 4 East 463; Fowler v. Shearer, 7 Mass. 22. An engagement which is all on one side-the other party not doing any thing or bound to do any thing-is nudum pactum. Cooke v. Oxley, 3 T. R. 653.
But when the action is founded on mutual promises, and the one promise the consideration of the other, it is not necessary that the act promised to be done by the plaintiff should appear to be immediately beneficial to the defendant in order to support the obligation of his promise. It is sufficient that its performance would be detrimental to the plaintiff or deprive him of a right which he before possessed. An injury to one party or a benefit to another, is sufficient consideration for a promise. Miller v. Drake, 1 Caines's Rep. 46; Buller, J., Nerot v. Wallace, 3 T. R. 24; Forster v. Fuller, 6 Mass. 58.
The vendee of a slave being entitled, if there should be a failure to deliver the slave, to recover his damages by reason of such failure, it is agreed that in such contingency the vendor will pay $100 certain and relinquish any claim to be discharged by a less sum and that in consideration thereof the vendee will relinquish his right to claim of the vendor a larger sum to which his damages might in fact amount. This is not nudum pactum but a valid agreement for breach of which the vendee may sue the vendor. Brooke v. Waring, 7 Gill 9.
It being discovered that the plaintiff had accepted a bill for what was not the correct balance due the payee, those parties and the endorsee agreed that that bill should be given up and in its stead a new bill given for such other sum as arbitrators should award to be the balance due. The arbitrators awarding that the balance was £ 318. 1s. less than the former bill, and the endorsee refusing to give up the former bill, an action was maintained against him. Gibbs, J. said, "the plaintiff cerVOL. II.-20
tainly would never have entered into this agreement to refer and give a new bill for the balance found unless the defendant had come into the measure and agreed to give up this bill: the plaintiff would never have left this bill outstanding in the hands of the defendant, exposing himself to have the amount of both bills recovered against him. In giving the second bill, the plaintiff gives that which is beneficial to the payee; and the giving up the former bill is part of the equivalent paid for the doing that which is beneficial to the payee. It appears to me, therefore, that there is a sufficient consideration for the promise." Baily v. Croft, 4 Taunt. 611.
On the back of a lease, a person other than the lessee writes. an engagement that the undertaking therein shall be performed. It may be presumed that the lease would not have been obtained without such guarantee; the permitting the lessee to occupy in consideration of the guaranty, is a sufficient consideration for that guaranty. Adams v. Bean, 12 Mass. 139; ante, p. 285.
To induce a person to become or to remain surety for another a promise is made by a third person to indemnify him against all loss in consequence of his becoming such surety; the consideration is sufficient to sustain an action on the promise to obtain recompense for damages which would not have been sustained but for that promise. Carroll v. Nixon, 4 W. & S. 526; Carman v. Noble, 9 Barr 370.
Money or credit is raised by the note of one man for the benefit of another. This last being the real debtor-bound to indemnify the maker of the note for what the holders might recover, promises them to settle the note by a particular day if they will withdraw it from bank; and it is withdrawn. There is sufficient consideration to sustain his promise. Stewarts v. Eden, 2 Caines's Rep. 150.
The being indebted is a sufficient consideration to ground a promise co-extensive with that consideration. But if the debt be a decedent's there must be some particular consideration to sustain a promise by a personal representative in his individual capacity. Rann &c. v. Hughes, 7 T. R. 346, note.
It was laid down by Yates, J., that any damage to another or suspension or forbearance of his right is a foundation for an undertaking and will make it binding; though no actual benefit accrues to the party undertaking. Pillans &c. v. Mierop &c. 3 Burr. 1673. Right is a correlative term. There must be some object of right; some object of suit; some party who in respect of some fund, or some character known in the law is liable; otherwise there cannot be said to be any right. Unless a right is capable of being exercised
unless it can be put in force-there can be no suspension of it. Jones v. Ashburnham, 4 East 463. When such a right exists, an actual forbearance to sue may often in connexion with other facts be evidence of an agreement to forbear, and as such form a good consideration for a promise. Walker v. Sherman, 11 Metcalf 170; Breed v. Hilhouse, 7 Conn. 523. But the mere hope or expectation of forbearance-or the fact of forbearance without any promiseis not to be confounded with an agreement to forbear. Byles on Bills 90, note; Crofts v. Beal, 11 Com. Bench (2 J. Scott) 172, 73 Eng. Com. Law Rep. 172. To constitute a forbearance to sue a third person, a good consideration for a promise by a stranger to the original consideration, it must have been in pursuance of an agreement to forbear. In such a case the injury to the promisee and the benefit to the debtor, both concur in making the consideration valid. Mecorney v. Stanley, 8 Cush. 87; Lonsdale v. Brown, 4 Wash. C. C. R. 150, 151. It matters not that the agreement was made before the debt became payable, if the agreement be to forbear to sue after a cause of action shall have arisen. Hamaker v. Eberley, 2 Binn. 506; Johnes v. Potter, 5 S. & R. 522.
If there has been actually commenced a suit, the final success of which is involved in some doubt, the giving up the claim in that suit, is a good consideration to support a promise to pay a stipulated sum. Longridge &c. v. Dorville &c. 5 Barn. & Ald. 117, 7 Eng. Com. Law Rep. 43.
If in consideration of the debtors' making a general assignment of their property to a trustee for their creditors, the trustee at the time of making the deed, promises that the workmen shall be paid at any rate, an action for breach of this promise may be maintained against him by one of the workmen. Hind v. Holdship, 2 Watts 105. There being a sufficient consideration, and the promise being in writing, it is no objection that it is a promise to pay the debt of another. And he for whose interest the promise is made may maintain an action on it, although the promise be made to another and not to him. Com. Dig. Action upon the case upon assumpsit, E., Arnold &c. v. Lyman, 17 Mass. 400; Uhland v. Uhland, 17 S. & R. 268.
3. Past consideration not sufficient unless benefit was conferred at defendant's request.
A past consideration, although beneficial to the defendant, is not sufficient unless the courtesy were moved by a suit or request of the party that gives the assumpsit. Lampleigh v.
Brathwait, Hob. 105. It will not, without such request, sustain a subsequent promise. Hunt v. Bate, 272, a.; 1 Rolle's Abr. 11; Hayes v. Warren, 2 Str. 933; Tindal, C. J. 1 Man. & Gr. 166; Chaffee v. Thomas, 7 Cow. 358. There are some decisions the other way. Greeves v. McAllister, 2 Binn. 591. But the weight of authority is that though there may be an express promise by the defendant to pay money, yet if the consideration for it (be not continuing, as in Carroll v. Nixon, 4 W. & S. 525, but) was past, and executed long before-a benefit voluntarily conferred by the plaintiff, and received by the defendant-but not conferred at the request of the defendant-the consideration is not sufficient. Eastwood v. Kenyon, 11 Adol. & El. 438, 39 Eng. Com. Law Rep. 137. In so holding, the court of king's bench considers that it is justified by the old common law of England. (1 Smith's Leading Cas. 67.) The distinction as to request, Lord Denman remarks, "is noted and was acted upon in Townsend v. Hunt, Cro. Car. 408, and indeed in numerous old books; while the principle of moral obligation does not make its appearance till the days of Lord Mansfield, and then under circumstances not inconsistent with the ancient doctrine when properly explained." 11 Adol. & El. 438.
4. Rule in Lord Mansfield's time as to moral obligation being a sufficient consideration.
The leading cases on this subject, in his time were Hawkes v. Saunders, Cowp. 290, and Atkins v. Hill, Id. 288. When it was argued before him that to make a consideration to support an assumpsit there must be either an immediate benefit to the party promising, or a loss to the person to whom the promise was made, Lord Mansfield would not agree to that being the only ground of consideration sufficient to raise an assumpsit. "Where," he said, "a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made. A fortiori, a legal or equitable duty is a sufficient consideration for an actual promise. Where a man is under a moral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration. As if a man promise to pay a just debt, the recovery of which is barred by the statute of limitations; or if a man, after he comes of age, promises to pay a meritorious debt, contracted during his minority, but not for necessaries; or if a bankrupt, in affluent circumstances after his certificate, promises to pay the whole of his debts; or if a man promise to perform a secret trust, or a trust void
for want of writing, by the statute of frauds. In such and many other instances, though the promise gives a compulsory remedy, where there was none before, either in law or equity; yet as the promise is only to do what an honest man ought to do, the ties of conscience upon an upright man are a sufficient consideration." Cowp. 290. Buller, J. was of the same opinion. "The true rule," he said, "is that wherever a defendant is under a moral obligation, or is liable in conscience and equity to pay, that is a sufficient consideration." S. C. 294.
5. Lord Mansfield's decisions remarked on by Lord Den
The counsel who argued for the plaintiff in Lee v. Muggeridge, 2 Barn. & Adol. 811, 22 Eng. Com. Law Rep. 187, spoke of Lord Mansfield as having considered the rule of nudum pactum too narrow, and maintained that all promises deliberately made ought to be held binding. "I do not," Lord Denman observes, "find this language ascribed to him by any reporter, and do not know whether we are to receive it as a traditional report or as a deduction from what he does appear to have laid down. If the latter, the note to Wennall v. Adney, 3 Bos. & Pul. 249, shews the deduction to be erroneous. If the former, Lord Tenterden and his court declared that they could not adopt it in Littlefield v. Shee." 2 Barn. & Adol. 811, 22 Eng. Com. Law Rep. 187. "Indeed," continues Lord Denman, "the doctrine would annihilate the necessity for any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it. The enforcement of such promises by law, however plausibly reconciled by the desire to effect all conscientious engagements, might be attended with mischievous consequences to society; one of which would be the frequent preference of voluntary undertakings to claims for just debts." Eastwood v. Kenyon, 11 Adol. & El. 348, 39 Eng. Com. Law Rep. 143, 4. If the holder of a gratuitous note can set it up as a legal claim, it would be extremely difficult to apply to his case the rules made for preserving the distinction between volunteers and creditors. Shaw, C. J., in Parish v. Stone, 14 Pick. 203. The conclusion arrived at in the note to Wennall v. Adney, 3 Bos. & Pul. 242, wherein most of the older cases are collected, Lord Denman has said (in Eastwood v. Kenyon, 11 Adol. & El. 348,) seems to be correct in general. It is that "an express promise can only revive a precedent good consideration, which might have been enforced at law through the