119 Me. 264 | Me. | 1920
At the basis of this suit there lies a non-negotiable promissory note. It reads:
“Lewiston, Maine, Sept. 5, 1912.
$10000.
For value received I promise to pay Susanne Greeley the sum of Ten thousand dollars with out interest.
Cyrus Greeley.”
In her writ, framed against defendant as executor of Mr. Greeley’s will, plaintiff sets out that the note remains unpaid, excepting as to the sum of one hundred dollars, endorsed at a time when the maker was living. At the trial there was concession that the notary, residing outside this State, before whom preliminary proof of claim was sworn, had authority to administer oaths. Save as to that, It
Burden of making proof of consideration is on the plaintiff. Small v. Clewley, supra; Huntington v. Shute, 180 Mass., 371. She must prove that valuable consideration furnished motive or inducement for the note. Maynard v. Maynard, 105 Maine, 567. The parties did not testify. No person gave evidence from personal knowledge
The note is not wanting valuable consideration. A promise can support a promise. Met. Con. 211. Saco Manufacturing Company v. Whitney , 7 Maine, 256; Babcock v. Wilson, 17 Maine, 372. Cyrus Greeley promised Susanne Greeley to pay her ten thousand dollars on demand, or the same thing. On Susanne’s part, there was concurrent binding promise to the maker of the note, and for the note, to hold herself in readiness to come to his home, in the twilight of his days, whenever he might request. The one promise underlying the other, but neither precedent to the other. Mutual, yet independent, promises. Waterhouse v. Kendall, 11 Cush., 128. Each promisor, as promisee, had the right at once to hold the other to a positive agreement. Preble v. Hunt, 85 Maine, 267. There is distinction, well defined and understood, between delivery of a note by maker to payee to have full effect at once, and delivery thereof made to depend, on its going into operation, upon events to take place. In the one instance, the note would be a valid obligation from the moment of tradition; in the other, there would remain some essential prerequisite to endue the note with life. Ware v. Davis, supra.
The vital feature for which this note was given was that Susanne agreed to hold herself in readiness to do something in behalf of the maker. The consideration necessary to support the note is not performance of what she agreed to do, but her agreement to perform. For that agreement Cyrus Greeley paid. He made and delivered the note to command sympathetic companionship for himself when he would. The record is silent of delivery on contingency. Had Miss Greeley refused to perform her undertaking there would have been failure of consideration, complete or pro tanto. Absence of consideration, rather than failure of consideration, is the reliance of the defense. However, it is only fair to say there is no evidence that
It is our decision, that the note in suit is enforceable against the maker’s estate. The conclusion is supported by authority in the field of precedents. Pierce v. Stolhand, (Wis.), 124 N. W., 259, was an action on a promissory note given in part payment of services to be performed. Defendant set up want of consideration. Said the court: “There is no doubt but that the agreement to perform the services was a sufficient consideration for the note.” A promise to deliver coal sufficiently supported acceptance of a draft for the purchase price, in Tradesmen’s Nat’l. Bank v. Curtis, 167 N. Y., 194. A note upon consideration payee would provide maker a home as long as he lived was held valid, notwithstanding that the maker also paid a weekly sum for board. In re Phile, 14 Phila., 330. In Earle v. Angell, 157 Mass., 294, defendant’s testatrix said to plaintiff, “If you will agree to come to my funeral, I will give you five hundred dollars.” Plaintiff promised to come if alive and notified in time. The court said, “We cannot say that this did not warrant a finding of promise for promise.” In Sharon v. Sharon, (Cal.), 8 Pac., 614, an agreement to pay money was held valid, by a consideration that the person to whom the money was promised should cease to disturb or annoy or make demands upon the promisor. In Traver v. Stevens, 11 Cush., 167, it was held that the payee of a promissory note, the consideration of which was the payee’s promise to the maker to
Manifestly, the note in suit is a valid, unredeemed obligation, resting on a valuable consideration. The entry will be,
Judgment for plaintiff for $9900.00 and interest from the date of the writ.