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Farmers Bank v. Mut. Ass. Soc'y &c. 4 Leigh 69; Wheeling Ins. Co. v. Morrison, 11 Id. 354; Brough v. Higgins c. 2 Grat. 412. If the assured, after a loss, assign his right to recover that loss, it will stand on the same footing as the assignment of a debt or right to recover a sum of money actually due. Like the assignment of any other chose in action, it will give the assignee an equitable interest and a right to recover in the name of the assignor, subject to set off and other equities. Wilson v. Hill, 3 Metcalf 69. p. 257, 8.
RIGHT OF ACTION ON PROMISES GENERALLY;
CHAP. 30. Consideration required to support a promise.
31. What is generally necessary to fix liability on a promise, express or implied. How contract may be made by an agent or through the post.
32. Of action for breach of promise to marry; or for things furnished to a wife or child.
33. Action on a contract for the sale of land; or for the breach of any warranty, express or implied.
34. Action against a tenant for rent; or for use and occupation; or for failure to keep, and deliver up, premises in good repair.
35. Action for proportion of general average.
36. Action against a corporation, professional man, broker or other agent for breach of duty.
37. Action for services rendered, work done or materials fur
38. Action for the price of goods.
39. Action for money lent.
40. Action for money paid by plaintiff to defendant's use.
41. Action for money received by defendant to plaintiff's use. 42. Action on a promise to account; or on account stated.
CONSIDERATION REQUIRED TO SUPPORT A PROMISE.
1. General rule as to necessity of consideration.
It was observed by Lord Loughborough, that a bargain without a consideration, is a contradiction in terms, and cannot exist. 2 Ves. jr. 208. From what has been already said in chapter 15, (ante, p. 141,) it may be inferred that by the law of England, a promise, not contained in a deed, is void, if the promise be without consideration. 2 Evans' Pothier 18.
A promise to pay money as a gift, is no more a ground of action than a promise to deliver a chattel as a gift. Noble v.
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.