21 N.Y.S. 934 | New York Court of Common Pleas | 1893
As the case does not purport to contain all the evidence, we are confined, on this appeal, to a review of errors of law by the trial court. Meislahn v. Englehard, 20 N. Y. Supp. 900, (recently decided.) Stating the case in the aspect most favorable to the appellant, it is that G. W. Smith & Co., having a judgment against J. P. O’Sullivan, as drawer of an unaccepted bill of exchange, assigned the draft and judgment to the appellant; that the appellant applied to the respondents to reserve out of a fund of O’Sullivan’s, coming into their hands as his agents, sufficient money to pay the judgment, and they promised so to pay the judgment; that O’Sullivan never authorized them to make such promise or payment; that, in consequence of such promise, appellant forebore any effort otherwise to collect the judgment; that respondents received the fund on account of O’Sullivan, but, instead of paying the judgment out of it, appropriated it to O’Sullivan himself, and to the satisfaction of their own claims against him. The question is Whether the respondents, by their neglect to pay appellant’s judgment, violated his legal right? Or, more directly, was respondents’ promise to pay the judgment of any legal force or effect? That to the existence of a valid contract a consideration is indispensable is an elementary principle; and equally elementary in our law is the other proposition: that a moral obligation, not surviving an extinct legal duty, is not such a consideration as will support an assumpsit. A consideration is a thing of some benefit, or legal possibility of benefit, to the promisor, or a thing of some prejudice, or legal possibility of prejudice, to the promisee. Now, it is obvious beyond the chance of mistake that neither the engagement to pay the judgment nor its actual payment by the respondents could be