3 Johns. 100 | N.Y. Sup. Ct. | 1808
delivered the opinion of the court. Several exceptions on the argument were taken to the substance of this declaration. But, for the purpose of expressing the opinion of the court, it is unnecessary to state any other than the first, via. That the plaintiff has not set forth a sufficient consideration to support the defendant’s promise. The only consideration upon which the defendant’s engagement can be supported, if at all, is, that the plaintiff was to account to him for such share of the vessel, cargo and profits, as, upon a final settlement of all the accounts in relation to them, Watson Brown would have been entitled to receive, in case he had survived the completion of the voyage. For aught that appears, no liquidation of these accounts has ever been made ; and if made, it does not appear that Watson Brown was entitled to receive a cent. The vessel may have perished at sea, or the cargo may have been lost, or some other disaster may have occurred, whereby this adventure has been rendered a losing one. The consideration upon which an assumpsit is founded, must be either for the benefit of the defendant, or to the trouble or prejudice of the plaintiff. As it is not averred, that there was a balance due to Watson Brown, it is to be taken for granted, that none was due ; it is, therefore, impossible that the plaintiff’s promise could produce any benefit to the defendant. There is nothing to show that it actually did, or in any way could, occasion any loss or trouble to the plaintiff. We are of opinion, therefore, that there is no consideration in this case for the defendant’s promise; and as this exception goes to the-whole ground of the plaintiff’s right of action, there must- be judgment for the defendant.
Judgment for the defendant-