Ellis v. Clark

| Mass. | Oct 15, 1872

GbAY, J.

Upon the plaintiff’s declaration and testimony, it appears that he had made an oral agreement with Paul for the sale of the standing wood, and that Paul had cut all the wood and removed some of it. The title to the whole wood had vested in Paul, with an irrevocable license to enter upon the plaintiff’s land and carry away what remained thereon, and the plaintiff had no right by his own authority to forbid his doing so. Nettleton v. Sikes, 8 Met. 34. Hill v. Cutting, 107 Mass. 596" court="Mass." date_filed="1871-09-15" href="https://app.midpage.ai/document/hill-v-cutting-6416558?utm_source=webapp" opinion_id="6416558">107 Mass. 596.

We have great doubts whether upon the allegations in the declaration and the evidence introduced at the trial, it would be competent for a jury to find that the plaintiff informed Paul that he intended to resort to legal process for the collection of the note and the attachment of the wood. But we express no decisive opinion upon that question, because the declaration may be amended, if necessary, and the testimony may perhaps vary, at the new trial, which must oe granted upon another ground.

The defendant, as the jury were rightly instructed, having put his name on the note after it had been delivered to the plaintiff and not as part of the original contract, could not be held liable without proof of some new and independent consideration. That consideration need not be a benefit to the defendant. Any loss or disadvantage to the plaintiff, by giving up some right against a third person, or agreeing to abandon or delay enforcing some right against him, would be sufficient. But the consideration or motive of the promise must be known to the promisor. The minds of the parties must meet and agree upon the terms of the whole contract, including the promise on the one side and the consideration for it on the other. An agreement between the plaintiff and Paul, by which the former agreed to forbear to sue the latter, would not be a consideration for the defendant’s promise, if not made at his request or communicated to him at or before the time of the making of his promise. Tenney v. Prince, 4 Pick. 385; S. C. 7 Pick. 243. Stone v. White, 8 Gray, 589.

It follows that the learned judge who presided at the trial erred in admitting evidence of conversations between Paul and the plaintiff, not proved to have been communicated to the defendant ; in refusing to give the last instruction prayed for; and in the instruction given to the jury upon the same point.

Exceptions sustained.