97 Pa. 361 | Pa. | 1881
delivered the opinion of the court, March 28th 1881.
A simple contract, oral or written, without consideration, is void, and no action can be maintained upon it. The law requires that the consideration should be valuable to support an action to enforce
The defence is, want of consideration for the note sued upon, and the burden, in the first instance, is on the defendant to rebut the prima facie case the plaintiff made by producing the note. But having given such rebutting testimony, consideration being the only fact in issue, it devolved on the plaintiff to satisfy the jury that it existed. To maintain an action on a simple contract the plaintiff must prove the consideration, and where the contract is a note the note itself is prima facie evidence of a consideration. Where a want of consideration is relied on in defence of an action on a promissory note, and evidence is given on the one side in the affirmative, and on the other side in the negative, the burden of proof is on the plaintiff' to satisfy the jury, upon the whole evidence, of that fact: Delano v. Bartlett et al., 6 Cush. 364. In that case it was said, that it was incumbent on the plaintiff to prove a consideration for the note, which she did by producing it and making a prima facie case. It was competent for the defendants to rebut this evidence, and they offered testimony for that purpose. The evidence on both sides applied to the affirmative or negative of the same issue or proposition of fact, a consideration for the note, and the plaintiff’s case requiring her to establish the fact, the burden of proof was all along on -her to satisfy the jury,
It follows that the defendant’s second point, to wit: “ That unless the jury find from the evidence that John Conmey has received a valuable consideration for said note, the plaintiff cannot recover,” should have been affirmed. '
Not only was said point denied, but the jury were instructed that the note itself purports a consideration, and if they found it was given by defendant to Overton to secure part payment of the money which Richard Conmey stole from him, without any threat or promise by Overton to have Richard’s sentence made heavier or lighter, the transaction was lawful, and'the note, if based upon it, was for a sufficient consideration, and the plaintiff may recover. This, we think, w'as grave error. The note does purport consideration, but not conclusively, and if there was evidence on both sides respecting that fact, the jury would weigh the evidence of the note with the other. It was unquestioned that the note was given by defendant to Mr. Overton to secure part payment of the money which Richard Conmey stole from him. And there is not a scintilla of evidence, outside the note, of any consideration for it. And if the jury found the fact just as stated in the answer to the second point, there was no consideration, and the plaintiff was not entitled to recover.
The defendant urges that the principle that a note, given by one person for a pre-existing debt owing by another is void unless there be a new consideration, has no application, because the note in this case was not given for a debt due or to become due, “but to ascertain, fix, determine and settle an unliquidated claim of damages in tort, and the consideration, so far as John Conmey was concerned, was that very fixing, determination, liquidation and settlement.” If given for damages arising from the tort of another person, the reason for requiring an immediate consideration for the note is quite as strong, if not stronger, than if given for a debt already contracted. John Conmey was under no obligation to pay the stolen money — there was no claim against him to be adjusted and settled. He gave his nude promise to pay a certain sum. There is no pretence that the evidence shows a settlement of Overton’s claim against Richard. He was not released. No time was given him. He could have been sued immediately, and Overton would have been entitled to full damages, deducting only the money actually paid by John Conmey.
If one person have been guilty of a wrongful act which would render him liable in damages to another, and he promise to pay the injured person a sum of money as compensation, this is a mere
Applying that doctrine to this case, it is clear that if the note was given merely to secure part payment of the money which Richard Oonmey stole, the plaintiff is not entitled to recover. If it was based on Richard’s crime, and there was no immediate consideration therefor, it was nudum pactum, as would have been Richard’s promise to pay Overton a sum of money for the injury’ done, without a release by Overton of his right of action for damages.
Judgment reversed, and venire facias de novo awarded.