Parker v. Crane

6 Wend. 647 | N.Y. Sup. Ct. | 1831

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’SéVefa'f bbjectiohs'laf'd''tai kén’tó' the d'eciaratioii. '" Idle'defendant’s c‘óUnéel"b'ayi'98V little in* support*of'his'ple’as,’’But'iáttkcltíff,th,é'‘'cÍecícirátion‘.''! It ‘is certainly tide that' every prómiáe' thtist Have ií'"suffiéiént . consideration tti support'it,'unléss!tlVé' Jpi‘o’mi'áB" bh'fab’defsedl, or By writing; ihipórtíng" h!consideration'‘ as! for' itié'tdlicéya prbmis'soiy noté": in such' ‘cases’a consildera’ticfti1 need' ndt "bb stated in thé'dééláraiíbn/’' This is not súcíi á'báséf'f1

Tile coimts are 'substantially’alike'; thé' ¿rát' sets' éü'6 Ufé wntfen agreemént’ih terms,‘ the second ‘states" the’substance of it!" (i Thé'cqnsídérátibn' stated is'tlife' sale ánVconvey'ah'cé1, op á'day which Vas then 'jsást', of tile possession‘of dUhcies ¡of land, Being' part of lot Nbi’6,'t/uniusj’stii'd to' Be esclvéáté'd to'tile state. " ^‘consideration upon"which’ an assumpsit;shall tiefounded, must :Be‘¥óf: the benefit' of IlVe' clefendaht, o'r to JtBetrbubié or prejudice -of the pMh'tiff.* 1. Fonb. 336, n. 5 Johns. R. 227. '2Ilfu‘TMpossession of'TáMs fe" áif inteióstVlnbh may be the subject of "dVéáléj ánd th'eréfoVe is Wri adequate consideration to support a promise for the price. The transfer of the possession was a prejudice to the plaintiff,, and a benefit to the defendant, and therefore a good consideration; but as stated in the contract, it was a past consideration, and therefore it should have been stated that the possession was sold at the request of the defendant. The case of Comstock v. Smith, 7 Johns. R. 87, is in-poipt. There the plaintiff stated in one count, for that whereas the defendant, on the 15th March, 1808, in consideration that the plaintiff had, before that time, sold and conveyed to the defendant a certain farm, undertook and promised, &c. On a motion in arrest, the court said: This is a promise on a past consideration, and all the cases agree that it should be laid as done upon the request of the party promising, or at least it must appear that the party promising was under a moral obligation to perform the promise. 1 Caines, 585. 1 Fonb. 336, n. I cannot distinguish this case from Comstock v. Smith. It is also objected that it should have been stated that the defendant came within the provisions of the statutes relating to escheated lands. That was not necessary. The plaintiff transferred the possession to the defendant. If, by virtue of that transfer, he obtained title, the promise attached.; but for the defect above stated, both counts are bad, and the., defendant is entitled to judgment, with leave to plaintiff to amend, on payment of costs.