Paxson v. Nields, No. 22

No. 22 | Pa. | Jan 5, 1891

Opinion,

Mr. Justice McCollum:

We are unable to discover from the evidence any consideration for the note in suit. The maker of it is the widow and executrix of Theodore F. Nields, who, at his death, was indebted to the appellants, on two notes and a book account, in the sum of $307.52. The estate was insolvent, and after discharging the judgment liens was able to pay its general creditors but five per cent on their claims. On April 21, 1885, the appellants presented their claim to the auditor appointed to distribute the fund in the hands of the executrix, and seven days thereafter induced her to give her personal note for it, which, when paid, was to be in full of their demand against the estate. The dividend their claim was entitled to was $16.47, and it was awarded to them. They received it and applied it on her note. This note was renewed from time to time, and the amount thereof was reduced by payments from her own earnings to $267.94, at the date of the last renewal. The fund shown by the account of the executrix to be in her hands for distribution, was all there was for the creditors, and there was no expectation by the payees or maker that the estate would pay a farthing beyond the dividend this fund would yield. The appellant’s demand, after the application of this dividend to it, was worthless and the parties knew it. It was because of this knowledge that the payees thought it was so generous and honorable in the maker to assume the debt of her dead husband.

It is clear that the appellants lost and the appellee acquired nothing by this transaction. It was a one sided affair and exclusively for the benefit of the former. But, as a promise to pay the pre-existing debt of another person to his creditor requires a new consideration to support it, they can take nothing further by it. What they have received by virtue of it, they may retain, but the law will not help them to more. The cases cited to sustain the contention of the appellants differ essentially from this. In Leonard v. Duffin, 94 Pa. 218" court="Pa." date_filed="1880-05-03" href="https://app.midpage.ai/document/leonard-v-duffin-6236556?utm_source=webapp" opinion_id="6236556">94 Pa. 218, the note was under seal, and the time for the payment of a debt then due was extended' one year. In Bentley v. Lamb, 112 Pa. 480" court="Pa." date_filed="1886-04-26" href="https://app.midpage.ai/document/bentley-v-lamb-6238345?utm_source=webapp" opinion_id="6238345">112 Pa. 480, the due-bill was given in execution of an agreement to pay additional compensation for services rendered, and, in view of the facts recited in the agreement, this court declined to infer that the services had been previously compensated in full. In Reily v. Dean, 36 Leg. Int. 304, the maker of the note volunteered to give it, to avoid protest and to extend the time of payment of a note against the estate.

As it sufficiently appears in the testimony of the appellants, that in this case there was no consideration for the promise sued upon, there was no question for the jury, and the learned judge was right in directing a verdict for the defendant.

The judgment is affirmed.