24 Wend. 284 | N.Y. Sup. Ct. | 1840
By the Court,
The plaintiff was nonsuited upon the abstract ground that the agreement in evidence was without consideration either appearing on its face, or made out by Valentine’s evidence; and not because there was any variance between the consideration, as set forth in the declaration, and that relied upon at the trial. This relieves the case from any question upon the pleadings, and raises the single one, whether a sufficient consideration was made out at the trial or is inferable from the evidence.
First, it may be conceded that the naked circumstance of the plaintiff having some time before executed a lease to the defendant would not constitute a consideration legally available in support of the defendant’s promise. Being completely past and executed, and not on the defendant’s request, no obligation would therefore lie upon him to pay*the sum promised. [ *287 ] Such is undoubtedly the rule, as to the form of pleading. There a promise averred to be in consideration of a past act, is not taken to be valid without the additional averment that the act was done on request, or some equivalent averment; though I am not prepared to concede that, when we come to the evidence and have the recital of a past consideration before us, and an agreement apparently treating that as the consideration, a request may not be implied. Evidence that yesterday A. delivered to B. his horse, and that to
But suppose the recital made nothing towards showing a consideration ; suppose it a nullity and strike it out of the instrument, I am still of opinion that sufficient is left from *which to imply a considera- [ *289 ] tion. The contract will then be, “ I do hereby agree and bind myself to pay to Samuel Andrews the sum of one hundred dollars, whenever and as soon as Sheriff street shall be opened.” Words like these, standing alone, were, in Easter term, 1839, held by the queen’s bench, in England, to import a consideration, and were received as sufficient to sustain an action upon an account stated. Davies v. Wilkinson, 1 Jurist, Am. 'ed. by Halst. & Voorh. 372. The words were, “ I agree to pay C. D. £695, at four instalments, (mentioning time and place for all except £95,) and adding, “ The remaining £95 to go as a set off,” &c. on a certain debt. The court pronounced this to be an agreement, not a promissory note ; and held that the word agree, of itself, imported a consideration. Lord Denman, Ch. J. said, “ I think the promise in this case conveyed by the words 11 agree to pay,’ imports a consideration, without doing any violence to the language.” And the three other learned judges, Littledale, Patteson and Coleridge, expressly concurred in the remark. The case is in point, and agrees with what has long been understood from the word agreement, as used in the statute of frauds. It means not only a promise but a quid pro quo, Wain v. Warlters, 5 East, 10. Lord Ellenborough, in the case cited, denied that the word was to be understood in a loose and incorrect sense, “ as synonymous to promise or undertaking,” but “ in its more proper and correct sense, as signifying a mutual contract on consideration between two or more parties.” In this view the court concurred. So much for the word when used in a statute; a fortiori when used in a contract. The statute might have been made operative without such a construction. In the view we are now taking, this contract cannot.
We have been favoured with the views of the learned judges in the court below, through a report of their opinions. They did not agree in sustaining this nonsuit. Two of them felt a difficulty in overcoming the ambiguity, the force of which I have noticed; but which, with deference, I have supposed not to be insurmountable. Neither of them adverted to the import of the word agree, when considered *ex propria vigore. [ *290 ]
For one, I feel quite clear that the contract in question was sustainable on the evidence, in several paints of view. The judgment below must, therefore, be reversed, a venire de novo to go from the common pleas ; the costs to abide the event.
Nelson, Ch. J. and Bronson, J. said, the lease and the agreement to pay $100 being both executed at the same time, and as part of the same transaction, show a good consideration for the undertaking to pay $100 on the opening of Sheriff street; and the plaintiff was therefore improperly nonsuited.