Benden v. Manning

2 N.H. 289 | Superior Court of New Hampshire | 1820

Richardson, C. J.,

delivered the opinion of the court.

The action, in which this judgment was rendered, was as-sumpsit, and the promise described in the first count was alleged to have been made in consideration that Benden was employed at his own request to make the coat; and also in consideration of $4 04 paid him by Manning in that behalf. The only evidence offered to the jury in proof of this allegation was, that after the coat was made and delivered to Manning, he paid Benden the sum of $4 04 for making the coat. Nothing can be clearer than that the payment of this sum after the coat was made could not have been the consideration upon which the promise to make the coat was founded. The payment of money, in order to constitute a good consideration, must be made at or before the tíme when the promise is made. We are very clear that when money paid is alleged to be the consideration of a promise, such allegation is not proved by evidence shewing a payment after the promise is made. There was of course in this case no evidence that had any tendency to prove the alleged consideration of the promise in the first count.

But it has been contended on the part of the defendant in error, that this action is brought to recover damages, not for a mere uonfeazance, but fora misfeazance, and therefore it was unnecessary to allege or prove a consideration. It is very dear? that no man can be liable for the mere nonperformance of a promise made without consideration ; of course, when an action is brought to recover damages for the non-performance of a contract, a consideration must be alleged and proved. But when one man does another an injury by unskilfully and improperly doing what he had promised to do, an action may be maintained to recover the damage, although there was no consideration for the promise. The reason of this distinction is very obvious, but it is a distinction that cannot, avail the defendant in error. Hi,-, action was assumpsit, founded upon the breach of certain promises alleged to have been made upon certain considerations. The very gist of the action was the breach of a valid contract. But if the promises were made without consideration, they were mere nuda pacía, and-no action could be maintained upon them. And if the consideration alleged were not proved, the action was not supported. But if, instead of assumpsit, a special action upon the case had been brought for misfcazance, it is very clear that no consideration need have been alleged or proved. The gist of such an action would have been the misfcazance, and it would have been wholly immaterial whether the contract was a valid one or not, 5 D. & E. 143, Elsee vs. Gatwood.—2 Wilson 359, Slater vs. Barker.—1 Saund. 312, note H.—Comyn’s Rep. 133, Coggs vs. Barnard.—Lawes’ Plead, in Assumpsit 61.

We are of opinion that the court below erred in directing the jury that the evidence was sufficient to prove the alleged consideration in the first count, and that the judgment must be reversed.