Dearborn v. Bowman, 44 Mass. 155

Dearborn v. Bowman

44 Mass. 155 | Mass. | 1841

Shaw, C. J.

The defence to the action to recover the amount of this note is want of consideration. It is manifest from the note itself, that it is not a negotiable instrument, being payable neither to order nor to bearer ; indeed it appears by the case, that the defendant declined making it negotiable. But total want of consideration is a good defence even to an action on a negotiable note, when brought by the promisee against the maker. Then the question is, whether upon the facts shown, any consideration appears for this promise. The note was given in consequence of services before that time performed by the plaintiffs, in printing and circulating extra papers and documents, previously to an election of state senators, at which the defendant was a candidate. Such services imposed no obliga tian, legal or moral, on the defendant ; and it would be some what dangerous to hold that they created any honorary obligation on him to pay for them. Nor would it be aided in a legal view, by a previous custom, if proved, for candidates to contribute to the payment of similar expenses, whether successful or otherwise in the election.

Nor were these services performed at the request of the defendant. On the contrary, it appears by the evidence that flhev *158were performed by Gen. Staples, chairman of the county com niittee, who alone was responsible for the payment, and between whom and the defendant, there was no privity, nor even any communication, until long after the services had been performed. The rule of law seems to be now well settled — though it may have formerly been left in doubt — that the past performance of services constitutes no consideration even for an express promise, unless they were performed at the express or implied request of the defendant, or unless they were done in performance of some duty or obligation resting on the defendant. Mills v. Wyman, 3 Pick. 207. Loomis v. Newhall, 15 Pick. 159. Dodge v. Adams, 19 Pick. 429. As the services performed by the plaintiffs were not done at the request of the defendant; as they were not done in the fulfilment of any duty or obligation resting on him ; there was no consideration, to convert the express promise of the defendant into a legal obligation.

Another ground, however, was taken in behalf of the plaintiffs, which was, that the discharge by the plaintiffs, of their legal demand against Staples, was a good consideration for the defendant’s promise to them. If such discharge was in fact given, and given at the defendant’s request ; or if the defendant had promised to pay, if they would discharge Staples pro tanto, and they did discharge him ; it would have been a good consideration for the defendant’s promise. But there is no evidence to establish the fact.

The court are of opinion that there was no legal consideration lor the defendant’s promise, and that no action can be maintained upon it.

Plaintiffs nonsuit.