Given v. Corse

20 Mo. App. 132 | Mo. Ct. App. | 1886

I.

Hall, J.

The plaintiff urges that the agreemen set up in the set-off is a nudum pactum, being without consideration. And the question thus presented as to whether or not there was any consideration upon which to base that agreement is the principal question in this case.

It is laid down by Parsons that “in general, a waiver of any legal right at the request of another party, is a sufficient’ consideration for a promise.” 1 Parsons on Contracts (7 ed) 473 (new paging).

In Waterman v. Barrett (4 Harr. (Del.) 311,) it is said that “any benefit to the defendant or detriment to the plaintiff, is a sufficient consideration.”

It is held in Burr v. Wilcox (13 Allen 273), that “any act done at the defendant’s request and for his convenience, or to the inconvenience of the plaintiff, would be sufficient” to support a promise by the defendant.

In Slillwell v. Aaron (69 Mo. 545), our supreme court approved the following statement of the principle of Mr. Story: “In the first place, as to considerations arising from benefit or injury. The principal requisite, and that which is the essence of every consideration, is that it should create some benefit to the party promising, or some trouble, or prejudice, or inconvenience to the party to whom the promise is made. Wherever, therefore, any injury to the one party, or any benefit to the other party, springs from a consideration, it is sufficient to support a contract.” Story on Contracts, sect. 548.

The facts in the case at bar render it very peculiar, but that alone will not prevent the applicability of the above well established principle. By the agreement between plaintiff and defendant, ■ which the j ary found was made, the defendant, who was the owner of a judgment against the plaintiff and who controlled an execution issued thereunder, then in the sheriff’s hands, by virtue of which execution the sheriff was about to levy upon the plaintiff’s property, agreed on his part to withdraw said execution by having the sheriff return it unsatisfied. By so agreeing the defendant clearly waived a legal right to his inconvenience. Said agreement by defendant was sufficient to support a promise by plaintiff.

Now as to the plaintiff, against whom the defendant had a judgment. From that judgment the plaintiff had taken an appeal to the supreme court, and upon the compliance by him with certain conditions of the law he would have been entitled to a supersedeas, which he had not yet procured. Upon his part, in consideration of defendant’s agreement, the plaintiff promised to pay the judgment on the first of the then ensuing April term of the Maries circuit court, provided he did not procure a supersedeas in the meantime. In other words the plaintiff promised not to procure a supersedeas after the first day of the said April term of the Maries circuit court. This is so, “because after payment of the judgment by plaintiff there could have been no such thing as a supersedeas. By this promise the plaintiff waived a legal right, and possibly to his detriment. The promise was a sufficient consideration to support the agreement by the defendant. The agreement between plaintiff and defendant, was, then, valid and binding, and was not without consideration.

II.

The plaintiff next argues that, under the agreement between him and the defendant, it was a condi-' tion precedent to the defendant’s right to a recovery that the plaintiff should not have procured a supersedeas before the first day of the said April term of the Maries circuit court, and that from the evidence it did not appear that the plaintiff had not, prior to said day, procured a supersedeas. This position is not correct. The plaintiff himself showed that a supersedeas was granted on the twenty-ninth day of April, 1880. And under section 1153, Revised Statutes, the first day of the April term of the Maries circuit court was the second Monday of April, which was, of course, prior to the twenty-ninth.

III.

As argued by plaintiff tbe supersedeas suspended tbe judgment bad by defendant against tbe plaintiff. And, therefore, we think that tbe trial court correctly declared that tbe amount of that judgment with interest was tbe measure of damages.

Judgment affirmed.

All concur.