Carr's v. Wyley

23 Ala. 821 | Ala. | 1853

QOLDTH WAITE, J.

It is true that a mere moral obligation, although coupled with an express promise, is not a sufficient consideration to support a contract, (Story on Prom. Notes § 185,) but a moral obligation, in this sense, we understand to be one which, if connected with an express promise to pay at the time of its creation, could not have been enforced for the want of a sufficient consideration alone, and not from any defence which the law would allow, but not require, the party against whom it existid to assert. — Story on Prom. Notes 185; Story on Bills of Exchange § 182, and cases there cited.

In the present ease, the condition of the bond recites, that the guaranty was given “ in, through and by the influence and persuasion55 of the testator of the defendant in error, which is, in legal effect, equivalent to its being given at his request.— The consideration, therefore, of tho contract sued on, is the guaranty of a third person given by the plaintiff in error at the request of the testator of the defendant in error, and this, especially when connected with an express promise of indemnity, by the party at whoso request tho responsibility was assumed, is not a moral, but a valuable consideration.—Brown v. Adams, 1 Stew. 51; Chapin v. Merrett, 4 Wend. 657; Chitty on Bills 74; Story on Prom. Notes § 186.

But it is said the bond is void for uncertainty. The condition of the bond is in these words: “ That whereas the said Carr guarantied for John W. Walker, on his bid for carrying the mail on route 3315 from Gainsvillo to Spring Place, in, through and by said Wyley’s influence and persuasion, which said contract tho said J. W. Walker has refused to execute : Now, if said Wyley does aud will stand betwixt the said Carr and the General Pest Office Department, so that the said Carr has no more trouble and expense, and releases the said Carr from all responsibility and damage in said matter, then the above bond to be void.” The instrument certainly is not technically drawn, but, had it been over so technical, wo doubt if the intention of the parties would have been any clearer. That the word “bid” was used for “contract” is evident from the subsequent use of the last word, and “said matter” in tho conclusion of the instrument can legitimately refer to nothing else than the guaranty of tho contract of Walker by the obligee. The plaintiff in error had, at the request of the obligor, guarantied the contract of Walker for conveying the mail on the route designated, and the latter having failed to comply with his undertaking, the stipulation of the other party is, to stand between the obligee and the Post Office Department for all damages growing out of his guaranty.

The other objections taken to tho declaration may bo briefly disposed of. Debt can be sustained on a bond like this, (1 Chitty’s Pl. 109; Herndon v. Forney, 4 Ala. 243,) and tho foreign executor, under our statute, (Clay’s Dig. 227,) has the right to prosecute his action in our courts. The effect of the proferí of tho letters testamentary is, to bring them into court, and operates precisely the same as if they had been set out in the declaration.

It follows from these views, that the court below erred in sustaining the demurrer; tho non-suit must, therefore, be set aside, the judgment reversed, and the cause remanded.