33 Vt. 405 | Vt. | 1860
It appears from the exceptions in this case that, on the trial in the county court, the plaintiffs introduced testimony tending to show that on the 1st of January, 1857, one Jonathan C. Burnett was indebted to them for goods previously sold by them to him, in the sum of seven hundred thirty-two dollars and forty-four cents, and that one Jesse Kimball, the agent of the plaintiffs, being informed that Burnett was likely to fail, called upon him on that day to obtain security for the debt; that Burnett called in the defendant, and offered to give to the plaintiffs the guaranty of the defendant for the debt, which proposition was accepted by Kimball for the plaintiffs ; that thereupon the defendant wrote, signed, and delivered to Kimball a guaranty in the words following, viz : ‘‘ I, Thomas Gleed, of Morristown, in Lamoille county, state of Vermont, hereby guarantee and agree that in case of any difficulty or failure in the circumstances of Jonathan C. Burnett of said Morristown, merchant, that all demands due to the firm of Gregory, Tilton & Co., from said Burnett, shall be secured and paid, said demands being under my control as attorney for said Gregory, Tilton & Co. For
A consideration of some kind is essential to the validity of every contract, but it need not be in money nor convertible into money. The intrusting a person with property on the faith of his promise to act in a certain way in reference to it is a sufficient legal consideration, in case he accepts and enters upon the performance of the trust, to hold him to his undertaking or promise in respect to it. A mere naked or gratuitous promise will not of itself create any legal liability, but the confidence induced by undertaking any service for another is a sufficient legal consideration to create the duty to perform the undertaking. Questions involving this principle usually arise in tlie case of bailments, and the principle, as stated, is well settled; Chitty on Con. 339; 1 Parsons on Con. 372. In Robinson v. Threadgill, 13 Ired. (N.C.) 39, it was held that where the defendant received certain notes
It. is claimed by the defendant that the consideration of the contract of guaranty should appear from the contract itself, and that the county court erred in admitting parol testimony to prove the consideration. This principle was established in the English courts as a rule of construction under the fourth section of the statute of frauds, relating to contracts to answer for the debt,
It is contended, on the part of the defendant, that his contract of guaranty was void as savoring of maintenance or champerty, but we do not find, either in the contract or in the facts which appear in the ease, any element of either offence, according to the recognized definitions of those terms.
No question has been made in the county court, or in this court, in respect to the sufficiency of the plaintiffs’ declaration, or to the identity of their debt against Burnett, therein mentioned, with that described in the defendant’s guaranty, or to the propriety of declaring upon the defendant’s undertaking in the contract of guaranty as upon an absolute promise to pay that debt. The exceptions taken by the defendant being for other cause than variance between the pleadings in the suit and the evidence given on trial, this court is authorized by the statute, (Comp. Stat., p. 225, sec. 46,) in case any such variance shall now be found to exist, which is not material to the substantial merits of the case, in its’discretion, either to disregard such variance, or to direct an amendment of the declaration, correcting it on such terms as shall be deemed reasonable, and to render judgment in the case in the same manner as if no such variance had existed. An objection founded on an alleged variance between
The exception taken by the defendant to the decision of the county court allowing the witness Kimball to refer, for the purpose of refreshing his money, to a letter written by him to the plaintiffs, having been waived on the hearing, has not entered into our consideration of this case.
The judgment of the county court in favor of the plaintiffs is affirmed.