Damon v. DeBar

83 Mich. 262 | Mich. | 1890

Grant, J.

This case originated in justice’s court upon a promissory note for $25, dated May 8, 1888. Plaintiff recovered judgment for $10.28, being the balance due upon the. note. Defendants appealed to the circuit court, where verdict and judgment were rendered in their favor, and plaintiff appealed to this Court.

The only defense is that the plaintiff promised, after the note became due, to receive in payment 200 posts for $10, and apply the same upon the note, and that defendant DeBar promised to get them out as soon as his fall work was done, and to have them ready upon his (De Bar’s) farm. This was a mere naked promise without any consideration, and was of no validity until it had been fully performed by the delivery of the posts, and the acceptance by plaintiff. While the posts were lying with others in DeBaNs field, according to his testimony, they were burned. There had been no acceptance by plaintiff of these posts in payment. The circuit judge should, therefore, have instructed the jury to render a verdict for the plaintiff.

Judgment reversed, with costs, and new trial ordered.

The other Justices concurred.