4 Vt. 139 | Vt. | 1832
delivered the opinion of the Court.- — It appears that on the 1st of May, 1829, Samuel H. Barlow, the plaintiff, and Charles B. Janes and Gardner G. Smith, two of the defendants, made a written submission of certain matters of difference between them to the determination of George Green and Luther B. Hunt, arbitrators ; and in their submission mutually agreed to abide the award of the said George and Luther B., and that the same should be a full and final settlement. This submission was not made a rule of court, but was simply the act of the parties. It was not under seal, and the parties relied on their mutual
On trial of the action, in the court below, the plaintiff offered this agreement in evidence to the jury; to the admission of which the defendants objected : first, for variance ; and secondly, for want of consideration: but the court overruled the objections, and admitted the agreement. Whether the county court erred in this is now to be determined.
Every agreement not under seal is, in law, regarded" a parol agreement,and will not be binding unless made upon adequate consideration.^ That consideration must generally be, either a matter of advantage to the promisor, or detriment to the promisee, or both, brought about in consequence of a previous request, express orim-plied, of the promisor^JFeii on Guarantees, 3,4.) (Butin addition to this, if a man be under amoral 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 limitation ; or if aman, 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, promise 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 these, and many other instances, though the promise gives a compulsory remedy, where there was none before, either in law or equity ; yet if the promise is only to do what an honest man ought to do, the ties of conscience upon an upright mind are a sufficient consideration. — (1 Tidd, 370; Cowper, 290.) So a promise for promise, made at the same time; or forbearance to sue a legal demand, is a sufficient consideration. — (1 Saund. 210 ; Hardres, 103.) But a promise made on a past consideration is not binding on the defendant. — (2 Strange, 933.) If an agreement be all on one side, and the plaintiff be not bound by it,
It also seems, there is a material variance between the contract set forth in the plaintiff’s declaration, and the one offered in evidence ; but it is not necessary to decide this, inasmuch as the defendants’ agreement had no sufficient consideration to support it.
The judgement of the county court is reversed, and a new trial granted^