103 Me. 362 | Me. | 1907
The defendant on the 31st day of August, 1901, conveyed to the plaintiffs his farm in St. Albans in the County of Somerset and State of Maine and assigned to them his interest in a policy of fire insurance to the extent of the buildings insured, reserving the insurance on the personal property covered by the policy.
The policy was to insure $1350 on the buildings and $450 on the personal property for a term of three years, about half of which was unexpired. The premium was $27.
The defendant did not deliver the deed when it was signed but did so at his home later in the day when he received the purchase price.
The plaintiffs seek their remedy by a special action of assumpsit to recover of the defendant the amount of the insurance on the buildings, $1350, with interest from September 7th, 1901, for the alleged breach -of a promise to send the policy to the agents of the company for assent necessary to the validity of the assignment.
The defendant pleads the general issue with a brief statement denying the alleged consideration and alleging that any promise to send the policy to the insurance agents was without consideration and void, and denying also that not sending the policy was the legal cause of the buildings being uninsured for which he should be held responsible.
The case is before the Law Court on report.
There is some conflict of evidence as to whether in the original trade the $2000, named as consideration in the deed included an assignment of the unexpired term of the insurance on the buildings. The defendant’s testimony indicates that the subject came up when the parties met to have the deed drawn, but that of the plaintiffs and their witness, Katen, shows that it was previously agreed that the $2000 was to, be paid for the property and insurance. But this is immaterial since the trade as consummated was for the farm and insurance on the buildings.
There is nothing in the nature of the defendant’s undertaking to constitute it a part of what was purchased by the plaintiffs. The payment of the consideration and the execution of the deed and assignment embraced the whole transaction. We cannot agree with
New rules have arisen from the development of tire action of special assumpsit from an action on the case for deceit into one for the breach of a parol promise. Since the decision in Rann v. Hughes, 7 T. R. 350, note, a consideration for all promises not under seal has been necessary ; and consideration is now generally defined as a benefit to the promisor or a detriment to the promisee.
In this case the promisor’s undertaking was not for any antecedent pecuniary consideration or for an anticipated recompense, but the consideration, if any, was detriment to the promisee. If, under the facts of the case, it may be considered that the plaintiffs, on the faith of the defendant’s undertaking parted with a. present right,
The defendant claims that the policy remained in his custody, that he retained it because he had an interest under it, and that consequently it cannot be said that the plaintiffs parted with the document, or surrendered any present right or suffered any prejudice on the faith of the defendant’s undertaking. But we do not consider that this custody of the policy was inconsistent with the plaintiffs’ legal possession. They had a right to it until it was presented to the insurance company for assent to the assignment and they entrusted it to the defendant to do what .they otherwise would presumably have done themselves for the protection of their legal rights. By reason of the defendant’s assumption the plaintiffs were delayed in the present use of the assigned policy for a purpose recognized as important.
But the consideration of the assumpsit as detriment to the promisee lacks the element of inducement. Fitch v. Snedaker, 38 N. Y. 248. It is true that a motive might be implied from circumstances, but it clearly appears that the entrusting of the policy to the defendant was not at his solicitation and therefore was not the consideration of the promise but a mere condition precedent to the performance of the promise. Holmes’ Common Law, 291; Haigh v. Brooks, 10 Ad. & El. 309 ; Hart v. Miles, 4 C. B. N. S. 371.
The voluntary promise of the defendant to perform a gratuitous service^wus__mjdum pactum and he cSnridt be Held liableTfor its non performance_as_a breach of contract.
-Judgment for the defendant.