7 N.H. 549 | Superior Court of New Hampshire | 1835
delivered the opinion of the court.
In this case, it is admitted that the plaintiff is entitled to recover the amount of the note declared upon in the firsl count. On the second count, no evidence was offered ; and the only controversy betwixt the parties is, whether the plaintiff is entitled to recover any thing of the defendant
It is necessary, then,.to enquire into the nature of the contract declared upon in the third and fourth counts, and whether the same has been complied with.
The third count alleges that the defendant had bound himself by deed to William. C. Hall, to the firm of 0. & D Churchill, and the-firm of 8. & L. Pulsifer, to pay, them fifty per cent, on all sums due from them to Gordon Whit-more, within one year after a recovery in a suit then about to be instituted in the name of Whitmore vs. Mills Oleott, On this suit judgment was subsequently recovered in favor of said Whitmore, and the sum of fifty per cent, on the demands of Hall and others had. thus become due ; and the, plaintiff alleges that it %vas agreed betwixt him and the defendant, that in consideration of his, procuring an assignment to himself- of the said deed, given by the defendant to the said Hall and others, that the defendant promised to pay him the amount, that he was bound by said deed to pay said Hall and others. . . -
The fourth count recites that a similar contract was made by deed with one William Cooper, and that a similar engagement was entered into, by the defendant to pay the. plain tiff the amount due from him to Cooper, provided he procured an assignment of the said deed to Cooper.
It is objected, on the part :of the defendant, that no contract is. set forth in these counts that it is the statement of a mere proposition, to which no offer of compliance was made by the plaintiff, and no assent given, and for which there was no consideration. .
This was true at the time the proposal was made ; but there are many instances of this -kind, where the- subsequent acts of the party, in compliance with a proposition made,
In the case Sturges and al. vs. Robbins, 7 Mass. R. 301, the declaration alleged that the defendant engaged to the plaintiffs “if they would credit one Elijah Davis a sum not exceeding five hundred dollars, if said Davis did not pay the same in twelve months, that the defendant would pay it.” This was a mere proposition, which the defendant could accept or not, at his option ; but a compliance with the proposal within any reasonable time was holden 'to be obligatory upon the defendant.
In Train vs. Gold, 5 Pick. 384, the agent of a creditor gave his indemnity to ail officer in another state to save him harmless for levying on certain property, and engaged to procure some one to be answerable with him. The defendant, who was the attorney of the creditor, wrote to the officer, referring to the agreement of the agent, and promised that he should at all times be saved harmless. No notice was given by the officer, of any acceptance of the indemnity thus tendered by the attorney ; but the acquiescence of the officer in the offer, without calling on the attorney for any farther security, and his subsequent incurring of expense, relying on said promise, was considered a sufficient acceptance, and the attorney was holden liable.
In that case, the court say it is now well settled, that all executory contracts, whether verbal or written, if not under seal, are void as between the contracting’parties, unless they are made on a good consideration ; but if a contract is deliberately made without fraud, and with a full knowledge of all the facts, the least consideration will be sufficient.
Thus if A demises certain lands to B, rendering rent, and B assigns the same to D, and rent becomes due, which D promises to pay to A if he will show him a deed by which it may appear that rent is due, and A shows it accordingly,
So if A promises B to pay him a certain sum of money if he will call for it at a particular time, and B calls accordingly, the promise is binding — the calling for the money being a sufficient consideration. For any gain to the pro-miser, or loss to the promisee, however trifling, is a sufficient consideration to support an express promise.
Nor is it necessary that the . consideration should exist at the time of making the promise ; for if the person to whom a promise is made should incur any loss, expense or liability in consequence of the promise, and relying upon it, the promise thereupon becomes obligatory. Thus if A promise B' to pay him a sum of money if he will do a particular act, and B does the act, the promise thereupon Recomes binding, although B at the time of the promise does not engage to do the act. In the intermediate time, the obligation of the contract, or promise, is suspended ; for until the performance of the condition of the promise, there is no consideration, and the promise is nudum pactum; but on the performance of the condition by the promisee, it is clothed with a valid consideration, which relates back to the promise, and it then becomes obligatory.
So if a reward be offered for the apprehension of a culprit, or for the doing of any other lawful act, the promise, when made, is nudum pactum; but when any one, relying upon the promised reward, performs the condition, this is a good consideration for the previous promise, and it thereupon becomes binding upon the promiser.
On these principles it was holden that the defendant in that action was liable on his promise, for the reason that the officer subsequently incurred loss and expense in defending his acts, relying on the defendant’s indemnity. See, also, Pillans vs. Mierop, 3 Bur. 1663; 3 Bos. & Pul. 249, note; 1 Com. Con. 17; Metcalf’s Yel. 236; Moies vs. Bird. 11 Mass. 436; Mason vs. Pritchard, 12 East 227; 1 Camp.
In Stadt vs. Lill, 9 East 348, the court remark that the rule as- to mutuality of a contract,has been more relaxed, than the rule as.to consideration, arid that ho engagement need appear on the part of the person to whom any debt- or engagement is secured, to. do that which is the consideration of the parties’ promise. It is sufficient that. in. point of fáet. he does it, viz. that he furnishes, goods, extends credit,-<fcc., and-upon his so doing the mutuality attaches., ,,
The case of Harris vs. Stevens, which was recently decided in Sullivan county, see ante, 464, is similar in character to the present case. There a proposition was made which was ‘subsequently complied with, and, on acceptance and, compliance with its terms, a beneficial interest in the contract was holden to extend back to the daté of the proposition.: ' ■ -
' In this cáse a proposition was made; during the pendency of suits against the defendant as trustee; in which the defendant claimed to hold a certain amount of funds in his hands, for-the payment, of .debts in Connecticut — that if this plaintiff would procure an assignment of those claims, the,money should be paid him. It does not appear to have been a mere casual conversation, but a proposition in apparent good faith, originating from' facts brought out in suits then pending, and in which this plaintiff at the time had an interest. The extent of this liability had been shown by the-oath of the defendant, and the proposition was clearly and: repeatedly made. No reason can be assigned for the making of it, except as the basis of a contract, and on the ground that the procurement of such an assignment would be a. benefit to the plaintiff, that he thus might liquidate outstanding claims against him for which he held the funds, and which might be forwarded, and enforced against him at any moment.
If such was the offer, a subsequent compliance, within a
Should we hold otherwise, the only effect would be, in this case, to turn the plaintiff round to suits in the name of the original creditors. The plaintiff having the assignments, with notice, it imposes an equitable and moral obligation on the defendant: to pay the money to the plaintiff as assignee. It would be a fraud on the. plaintiff, to .pay the original creditors. Having the assignment merely would not be sufficient to support an implied assumpsit in the plaintiff’s name, but it would be a good consideration for an express promise to the plaintiff upon which an action in his own name might be sustained. The authorities are clear upon this point, and it would seem to be of but little consequence whether such promise be made before, or after the assignment, provided such assignment be obtained in pursuance of such promise, and within a reasonable time. If so, suit in the plaintiff’s name might well be instituted by virtue of the assignment, and promise. . Crocker & ux. vs. Whitney, 10 Mass. 316; Mowry vs. Todd, 12 Mass. 281; Usher vs. D’Wolfe & al. 13 Mass. 290; Jones vs. Witter, do. 304; Skinner vs. Somes, 14 Mass. 107; Coolidge vs. Ruggles, 15 Mass. 387.
But, as it has been remarked,. where a proposition is made which is executory in its character, it undoubtedly should be complied with within a reasonable time, in order to bind the party making itand it-becomes- necessary to determine in this case whether the proposition made was accepted with
In this case, for aught that appears, there has been no change in the relative situation of the parties, so that the defendant is subject to any inconvenience in consequence of the delay in meeting his proposition. The defendant has not paid the debt, nor discharged the bond which was outstanding against him, and he admits, by his own disclosure in another action, which is filed as evidence in this case, that he had and still has, funds of Whitmore in his hands, reserved expressly for the payment of the claims now in suit. The /necessary measures, also, to procure an assignment of these ’ claims, under the circumstances of this case, are such as , would justify a very considerable delay. It is uncertain, t from the testimony, whether this delay was something less than one, or nearly two years. This is a long time, but the nature of the contract is such, it being merely the shifting of payment of an acknowledged debt from one individual to another, and nothing being suggested as to any change in the situation of the parties, whereby the defendant would be , prejudiced; a compliance, also, necessarily requiring much time, and the proposition being made unlimited as to time, when it would seem to have been limited had it been holden essential, induce us to believe that the delay may be regarded as not unreasonable, and that the evidence sustains, in this respect, such an acceptance and compliance with the proposition as to make the contract binding.
Admitting this to be the case, the question remains to be considered, whether it has been duly complied with in the proper procurance of the assignments. It is essential to this defendant, that the strict rules of law to constitute a valid
Waiving, for the present, the objection that the bond assigned is not produced, we shall consider the objection taken to the assignment of the claim of S. & L. Pulsifer, which is, that the deed was executed by S. Pulsifer alone.
It must be considered as settled, that each partner has the entire control of the personal estate of the partnership, and may adjust, receive payment, and release a debt.
In this case the assignment is under seal, and the doctrine that one partner cannot bind another by deed has been supposed to apply. Harrison vs. Jackson, 7 Term Rep. 207; Clement vs. Brush, 3 Johns. Ca. 180; Thomason vs. Frere, 10 East 418; Gerard vs. Basse & al., 1 Dal. 119. But although one partner cannot, by deed, bring any fresh bur-then upon his co-partner, he may by deed bar him of a right which they possess jointly ; and where there is a promise to several jointly, or there are several joint obligees, or cove-nantees, a release by one binds all. Co. Lit. 232 a; Tooker’s case, 2 Rep. 68; Bacon’s Ab. Title Release; Com. Dig. Title Release; 4 B. Moore 194; Perry vs. Jackson, 4 Term Rep. 516; Pierson vs. Hooker, 3 Johns. 68; Bulkley & al. vs. Dayton & al. 14 Johns. 387; Bruen vs. Marquand, 17 Johns. 58; Hodges vs. Harris, 6 Pick. 360.
The assignment of S. Pulsifer, by deed, purports to convey all his right, and all the right of S. & L. Pulsifer, to any claims against Gordon Whitmore, or Josiah Bellows, by bond or otherwise ; and such an assignment may be legally made, and passes the whole interest of the firm.
Another exception taken is, that the assignment by C. Churchill, reciting that he was a surviving partner of the firm of C. & D. Churchill, was without legal effect, because it was not shown that the other partner was dead, and he thus had a right to act.
.. A farther exception taken is, that the assignment by Samuel Cooper, as administrator of William Cooper, was -improperly admitted, as there was no-'competent evidence of his appointment as administrator.- The only proof offered; was a certificate-from.the register of probate.' But.a certificate off .-a register off probate is not. evidence of .a grant off letters .of administration. If a record of the grant'is kept, a copy of that record is the proper evidence. 1 Stark. Ev. 248; Gorton & al. vs. Dyson, 1 Brod. & Bing. 219; King vs. Barnes, 1 Stark. Rep. 243; Davis vs. Williams, 13 East 232. If no record is kept, the, register is -no certifying -officer. In this case.,.the register not only.certifies that Cooper was administrator, but that Samuel Gill was joint administrator with him, and that Gill is dead. If both administrators, if living, should join in -the assignment, a certificate of the . death of one-of them would not be legal evidence. A certificate in either respect is incompetent evidence.
Another exception is, that' the debt of William C. Hall, and his interest in the bond referred to, is assigned by
. Au exception is. also taken on account of the rion-prodtic- • tion- of the bond alleged to be assigned, which is an-import-an.t consideration in this case. ' " '•
• A bond may be assigned by deed, or .other writing, or without writing, so as to give the assignee a. fight to receive the-debt, -to release it, or to sue in" the-name-of the obligee ; -but in general, the instrument itself should'be delivered to the assignee. 1 Mass. 117, Perkins vs. Parker; 4 Mass. 450, Foster vs. Sinkler & trustee; 13 Mass. 304, Jones vs. Witter; 15 Mass. 481, Dunn vs. Snell & al.; 2 Green. 322, Vose vs. Handy; 11 Johns. 47, Raymond vs. Squire; 12 Johns. 346, Canfield vs. Monger; 17 Johns. 284, Prescott vs. Hull.
. When a demand is- made of the maker- of -anote, the note itself should be produced, otherwise the debtor may well refuse to pay, on the ground that he has a right to have his obligation or contract, or to see it cancelled when he is called upon to discharge it. 1 N. H. Rep. 80, Tredick vs. Wendell; 7 Mass. 483, Freeman vs. Boynton; 13 Mass. 557, Woodbridge & al. vs. Brigham; 6 Mass. 524, Berkshire Bank vs. Jones; 7 Cranch 275, Morgan vs.. Reintzel; 2 Camp. 211, Pierson vs. Hutchinson; 3 Cowen 303, Rowley vs. Ball; 4 Taun. 602, Davis vs. Todd; 2 Gallis. 351, Peabody vs. Denton.
A contract like this, where a proposition on a certain consideration was made to another to procure the assignment of an instrument, cannot be considered as fulfilled unless, the instrument itself be produced. The condition on which the
The contract of the defendant, may be considered a contract to pay, if the bond is produced and an authority to receive payment is shown, or if it has been duly assigned, and delivered, and its non-production is accounted for by loss from time, accident, or other cause. It is not enough, under this contract, to show a loss of the bond merely; it must be shown to have been lost after delivery to the plaintiff.
As the bond has not been produced, nor its .loss shown subsequently to the assignment, the plaintiff fails in sustaining his claim on his special counts, and for this, as also for the other reasons named, the verdict cannot be sustained, and the case must be set aside, and transferred, unless the parties agree on a judgment for the amount of the note declared on in the first count.
Verdict set aside-
