64 Vt. 387 | Vt. | 1892
The opinion of the court was delivered by
The defendant’s motion for a verdict was properly overruled. It appears from testimony, not controverted, that the defendant was a stockholder and director of the First National Eank of St. Albans. The plaintiff and his sister had money deposited there, evidenced by certificates of deposit. There was a run on the bank, and the plaintiff presented these certificates and demanded the money evidenced by them. There was a sufficient amount of money at hand to pay the sums demanded ; but the officers of the bank desired to retain it and asked the plaintiff to leave it. Thereupon he told them he would accept of a new certificate signed by the defendant, otherwise he wanted the money. They gave him such a certificate, and he surrendered up to the bank the old certificates. The plaintiff subsequently paid his sister the amount of her certificate, which was included in the new certificate. The cashier of the bank understood the plaintiff was to forbear for a reasonable time the exercise of his right to draw the money, and the plaintiff did forbear until the bank closed its doors and its funds went into the hands of a receiver. At this time the bank was insolvent. The evidence fails to show that a definite period of forbearance was agreed upon, but no question is made but that the plaintiff did forbear for a reasonable time.
The uncontroverted -evidence clearly entitled the plaintiff to a holding by the court that there was a sufficient consideration for
In Gunnison v. Bancroft, 11 Vt. 490, it is held that language used by one party to a contract, is to receive such a construction as he at the time supposed the other party would give to it, or such a construction as the other party was fairly justified in giving to it.
In Judevine v. Goodrich, 35 Vt. 19, where one, in reply to the request of another for a license to do something in respect to the former’s' property, did not intend to accede to the request, but purposely used language susceptible of a double interpretation in this respect, with the intention that the other party should derive the impression that he did accede to the request, and the other did derive such impression and relied on it, it was held that he was bound to the same extent as if he had, in express words, granted the license.
When the plaintiff said to the officers of the bank, in reply
In Howe v. Taggart, supra, Field, J., in delivering the opinion of the court, says : “It seems to have been assumed in this Commonwealth that an agreement to forbear bringing suit for a debt due, even although for an indefinite time, and even although it cannot be construed to be an agreement for perpetual forbearance, if followed by actual forbearance for a reasonable time, is a good consideration for a promise.”
In Moore v. McKenney, supra, decided by the Supreme Court of Maine, in 1890, the defendant wrote his name upon the back of the note declared upon, intending thereby to guarantee its payment. He did this in consideration of the plaintiff’s promise to forbear and give further time for the payment of the note; no time of forbearance was agreed upon, and it was held that the court properly ordered a verdict for the plaintiff. "Wal
In King v. Upton, supra, the promise counted on was to pay the debt of another, in consideration that the creditor would “ forbear and give further time for the payment of the debt,” naming no time. The plaintiff averred that he did thereupon forbear, and the consideration was held sufficient.
In Calkins v. Chandler, 36 Mich. 320 (24 Am. Rep. 593), it is held that an agreement to pay the debt of another, in consideration that the creditor would forbear and give further time for payment, is founded upon a good consideration, although no definite time of forbearance is named.
In Hakes v. Hotchkiss, 23 Vt. 235, it is said, “If no agreement be made as to the length of time, during which the promissee will forbear, the law will presume, that he undertakes to forbear for a reasonable time; and this is sufficiently certain and is a good consideration.”
Parsons in his work on contracts, vol. 1, p. 442, says, “Nor need the agreement to a delay be for a time certain, for it may be for a reasonable time only and yet be a sufficient consideration for a promise.”
The Revised Statutes of the United States, sec. 5242, relating to banks, provides, among other things, that all payments of money made after the commission of an act of insolvency, or in contemplation thereof, with a view to prevent the application of its assets in the manner provided in that chapter, or with a view to the preference of one creditor to another, 'except in payment of its circulating notes, shall be utterly null and void. It is insisted by the defendant, that a payment b.y the bank at the time
Consideration does not necessarily depend upon whether the thing promised results in a benefit to the promisee, or a detriment to the promiser. It is enough that something is promised, or the exercise of a present right is foreborne. In Anson on contracts, 62, it is said: “ Courts will not inquire whether the thing which forms the consideration does, in fact, benefit the promisee or a third party or is of any benefit to anyone. It is enough that something is promised, done, foreborne, or suffered by the party to whom the promise is made, as a consideration
There was evidence tending to show that the defendant was a maker of the certificate ; and, if such maker, his undertaking was to pay the plaintiff the amount called for by the certificate when it, properly endorsed, should be returned to the bank.
The plaintiff was allowed to testify that he would not have left his money in the bank, if he had not understood that the defendant was obligated to pay it. The plaintiff was allowed to testify, without objection, that he went to the bank for the purpose of drawing his money ; and there was no error in allowing him to state that he would have done what he purposed to do but for the defendant’s promise.
The defendant requested the Court to instruct the jury, “ That if Albert Sowles and Edward A Sowles signed the certificate as endorsers, with the right of demand and notice, then, under the testimony, the defendant is not liable.’’ We think, from the testimony, that if Albert and Edward A Sowles were endorsers, then the defendant was an endorser; but the necessity for such instruction was obviated by the instruction, that, if the jury found that the defendant was an indorser, then the plaintiff could not recover, and it was not error to decline to give the instruction requested. Whatever may have been the relation of the signers of the certificate to each other, they were, for the purpose of determining their liability to the. plaintiff, either makers or endorsers of the certificate. The evidence showing the understanding between the signers of the certificate as to their respective liability to the plaintiff, and as between each other, was not withdrawn from the consideration of the jury; and it was for them to say, from all the evidence, whether the undertaking of the defendant was that of a maker or that of an endorser.
The Court told the jury that, if nothing was said to the
The Court told the jury that, if the defendant put his name upon the certificate for the purpose of stopping a run on the bank and tiding it over its then exigency, this would be a suffi
The plaintiff concedes that there was error in the proforma ruling of the Court upon the question of interest, and offers to remit the excess of interest included in the judgment rendered in the County Court.
Judgment reversed ; judgment for the plaintiff to recover nine hund/red and sixty-t/wo dollars, with interest to he computed at the rate offou/r per cent, per annum from the date of the certificate to the date of the writ, and six per cent, thereafter, cmd his costs vn the Country Court, less the dividends paid on the certificate by the receiver and ■ the defendant's costs in this court.