2 Barb. 420 | N.Y. Sup. Ct. | 1848
From the evidence detailed in the case, it seems quite clear that the only consideration for the note upon which the action is brought, was the difference between the price, or purchase money paid and secured to be paid by the defendant, for the interest of the plaintiff, Eliza Ann Archer, in the land conveyed by her to the defendant, and the amount the said Eliza Ann supposed the land, or her interest in it, was worth, and which she supposed she was receiving at
There is a class of cases where it has been said that a moral obligation is sufficient to support an express promise; such, for instance, as the obligation to pay a debt barred by the statute of limitations, or an insolvent’s discharge, or to pay a debt contracted during infancy, or coverture, and the like. But a mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not enough. The result of all the
The cases of Seaman v. Seaman, (12 Wend. 383,) and Mussel v. Cook, (3 Hill, 504,) also cited by the plaintiff’s counsel, were both decided upon a different principle. In the first, the consideration of the promise was the withdrawing a caveat by an heir at law to proving the will of the ancestor; in the other, it was the settlement of a doubtful claim. In both cases the consideration was held good, upon the ground of advantage to the promissor, or damage or inconvenience to the promisee. Clearly the present does not come within that class of cases, which rests upon an entirely different principle from the cases of moral obligation.
The judge, at the trial, among other things, charged the jury that if they believed, from the evidence, that the amount paid for the judgment was designedly kept secret from the plaintiff, and she was induced to sell her interest for a less price on that account, then the note was valid if given to settle the deficiency occasioned thereby. Waiving the question as to what would be the effect upon the rights of the parties, on the assumption that there was proof in the case to authorize the jury to find the affirmative of the proposition submitted to them, we think the judge was led into an error in this respect; for the reason that the case is utterly destitute of evidence to prove a fraudulent concealment, which the jury could with any propriety have taken into consideration. So far from it, the plaintiff expressly disavows the imputation; and the case abundantly shows that the note was given simply to appease the querulousness of the plaintiff, and was the merest gratuity. The question, it is true, was submitted with great caution, and I should infer from the language of the charge, that his honor would have decided the question adversely to what the jury have done; nevertheless, as I think there was no evidence to go to the jury, on that question, it should not have been submitted to them.
On a motion for a new trial upon a case, for the misdirection
For the foregoing reasons there should be a new trial, with costs to abide the event.
New trial granted.