Ford v. Adams

2 Barb. 349 | N.Y. Sup. Ct. | 1848

By the Court, Cady, P. J.

The defendant’s acceptance of the order, and his promise as stated in the declaration, were without any consideration, and therefore void. This case cannot be likened to one where a debt due upon a bond, or any other contract not negotiable, has been assigned, and the debtor makes an express promise to pay. In such a case the assignee can in his own name, in a court of equity, compel the payment of the debt. The debtor, in such a case, is under a moral and equitable obligation to pay the,debt to the assignee; and that obligation is a sufficient consideration for his promise to pay the debt. (Crompton v. James, 4 Cowen, 13.) But in this case the plaintiff is not the assignee of the debt due from the defendant to Jacob Schyer. The order which he held gave him no equitable right to compel the defendant to deliver to him any wood, nor was the defendant, by reason of the order, under any moral or equitable obligation to deliver any wood to Jacob Schyer, or to the plaintiff. He received nothing for his acceptance of the order and his promise to deliver the sixty cords of wood. The debt due from him to Jacob Schyer was not thereby satisfied in whole or in part; and had the defendant delivered the sixty cords of wood to the plaintiff, he could not have discharged the defendant from the whole or any part of the debt due to Jacob Schyer. The plaintiff gave no consideration to Jacob Schyer for the order, nor to the defendant for his acceptance of the order, and his promise to deliver the wood. If the defendant had, in consideration of his owing $200 to Jacob Schyer, promised to deliver to him sixty cords of wood, the promise would have been without consideration, without a promise on the part of Jacob Schyer that he would accept the wood in satisfaction of part or the whole of the debt due to him. (See the cases collected, in a note to the case of Mowry v. Todd, 12 Mass. Rep. 284, ed. of 1843.)

The defendant must have judgment upon the demurrer.