Churchill v. Bradley

58 Vt. 403 | Vt. | 1886

The opinion of the court was delivered by

Roavell, J.

Treating the bank note as paid as to the defendant, and him as -discharged therefrom, it certainly remained good in the hands of the plaintiff as against Brown, the principal; and this raises the question whether the surrender of it by the plaintiff to the defendant constituted a sufficient consideration to sustain the note in suit. We think it did.

It is fairly to be gathered from the case, that -when the. defendant signed the new note he was aware of all xthe facts connected with the plaintiff’s holdership of the old note, except the fact that the bank had marked it as paid, and this he knew immediately after, when the note was .surrendered to him. So on the occasion of giving the new note he was aware of all the facts in the premises. The plaintiff made no misrepresentation, but acted in good faith in the matter, and the parties discussed together the question of defendant’s liability on the bank note, and both believed him liable, and therefore the new note was taken and the old note given up. Thus it appears that the new note was not given under any mistake of fact, not even of the fact of the old note having been marked as paid, for the defendant knew that on the spot — and it was all one transaction— but did not regard it of sufficient importance to even speak of it, much less, to offer to return the old note and to demand back the new; nor has he ever done that, but still retains the old note, which makes against him. The most that can be said is, that the new note was given in ignorance of the law. But this will not avail the defendant. In Stevens v. Lynch, 12 East, 38, the drawer of a bill of exchange, knowiñg that time had been given by the holder to the acceptor, but apprehending that he was still liable on the bill in default of the acceptor, three months after it was due, said he knew he was liable and would pay it if the acceptor did not, — and it was held that he was bound by the promise, s. c. 2 Camp. 332. The universal rule is, ignorantia juris non excusat, the word jus being used as denoting general law — the ordinary law of the land, and not a private right. 1 Benja. Sales, s. 611. The cases that hold that money paid in ignorance of the law is not recoverable are analogous. Brisbane v. Dacres, 5 Taunt. 144; Clarke v. Dutcher, 9 Cow. 674.

Any act that is a detriment to the plaintiff is a sufficient consideration for a promise to pay money. Williamson v. Clements, 1 Taunt. 523. It was a detriment to the plaintiff to give up the old note, as it was good against Brown; and the fact that Brown was insolvent makes no difference, for the note must be taken to have had some value, and a small consideration will support a larger promise. Hitchcock v. Coker, 6 A. & E. 438; Creswell, J., in Southall v. Rigg, 11 C. B. 481, 494; Denman, Ch. J., in Haigh v. Brooks, 10 A. & E. 309; Harrington v. Wells, 12 Vt. 505.

In Shortrede v. Cheek, 1 A. & E. 57, the giving up of a note against a third person was held to be a sufficient consideration for a promise to pay the amount of it. Parke, J., said: “ There is no doubt that the giving up of any note on which the plaintiff might sue would be a sufficient consideration.” In Haigh v. Brooks, 10 A. & E. 309, the consideration for the promise was, that plaintiff gave up to defendant his guaranty on behalf of a third person; and it was contended that the guaranty was void for not expressing a consideration on its face, and that therefore the giving of it up constituted no consideration for the promise. But without deciding whether the guaranty could have been made available or not, the Queen’s Bench gave judgment for the plaintiffs on the ground that they had parted with something they might' have kept and the defendant obtained that which he desired by means of his promise; that both being free and able to judge for themselves, the defendant would not be justified in breaking his promise on afterwards discovering that the thing in consideration ‘ of which he made the promise did not possess the value he supposed it did. The Exchequer Chamber affirmed that judgment, both on the ground that the guaranty might have been made good by explanatory evidence, and on the ground — -Maulé, J., doubting — that the actual surrender of the possession of the paper to the defendant was a sufficient consideration without reference to its contents.

These authorities are decisive on this point, and the judgment is affirmed.