37 Barb. 152 | N.Y. Sup. Ct. | 1862
By the Gourt,
This complaint is upon an agreement by paroi for the payment of money, and upon demurrer it must appear that there was some consideration for such an" agreement. Otherwise it is void, and the action must
These are all the allegations made, and all the facts stated upon the subject of the agreement upon which this suit is founded. It is a serious if not a fatal difficulty that it does not. appear that the plaintiffs did abstain from making the application referred to, or did, or omitted to-do, any thing on their part, in pursuance of the agreement. If the agreement by which the defendant bound himself to pay money is to be sustained as a compromise of a disputed claim, it should at least appear that there was a compromise. The consideration stated here was executory, and it should at least appear that it had been performed, in order to the defendant’s liability or his corresponding obligation.
But if it had been averred that in consequence of the defendant’s promise the plaintiffs did refrain from making an application to set aside the sale, this complaint would still be defective. It is undoubtedly true that a settlement or compromise of a disputed claim or controversy is a sufficient consideration for a promise to pay money, and that the courts will not inquire whether the claim was a valid one or could have been sustained. The rule is so stated by Judge Bronson in Stewart v. Ahrenfeldt, (4 Denio, 189,) although its application was defeated there by a fraudulent concealment
The case of Edwards v. Baregh (11 M. & W. 641) was in some respects like the present. There was a demurrer to a declaration, and although the declaration stated that disputes and controversies were pending between the parties as to whether the defendant owed the plaintiff a certain sum, and in consideration that the plaintiff would promise not to sue, and would accept £500 in satisfaction, the defendant promised to pay £500, yet the declaration showed no consideration for the promise because it did not allege that any debt was due, hut only that disputes existed. The opinions of the judges, and the decision of that case, go farther than is necessary here, for there is no allegation in this complaint that there was any doubt or dispute whatever as to the validity or the regularity of the judgment of foreclosure, or any ground for setting it aside. There is a case in Pennsylvania, (O’Keson v. Barclay, 2 Penn. Rep. 531,) in which a note given to settle a slander suit for words not actionable was sustained. . But the cases of Hanaker v. Eberle, (2 Bin. 509,) Johnes v. Potter, (5 S. & R. 519,) in the same state, are more in accordance with the rule to be collected from the English and the earlier authorities, and seem to me better considered. A similar principle will be found in Rowell v. Brown, (3- John. 100, 104,) where a promise to pay a debt of one W. B. to the plaintiff, in qonsideration that the plaintiff would account to the defendant for the shares of W. B.
It has been sometimes suggested that avoiding the expenses of resisting a claim or defending a suit, under any circumstances, would be a sufficient consideration for a compromise of the demand. But this would lead to sustaining such promises to pay money for the relinquishment of prosecutions which were utterly unfounded and malicious; and besides, the law supposes that the costs which would be recovered of the party making such a claim would be'a sufficient indemnity for such expenses.
This complaint is defective in not alleging that there was some doubt or dispute as to the regularity or validity of the judgment in the foreclosure action, upon which the defendant might have founded a proceeding to vacate it, and for this reason, without passing upon any other questions which have been alluded to, the demurrer should have been allowed.
The order appealed from must be reversed with costs, and judgment ordered for the defendant, with leave to the plaintiffs to amend on the usual terms.
Mnott, Brown, Scrugham and Lott, Justices.]