74 Mass. 589 | Mass. | 1857
It is very clear that the plaintiff could not recover against the defendant Snow, upon the counts in this writ, charging him as an original party to the note set out in the declaration. Upon the evidence, it appeared that he was not a party to the note when it was made, and did not partake in the consideration for which it was given. He affixed his name to it several months after its date, and while it was in the hands of the payee. His contract was collateral to that of the signers of the note, and was in its nature a guaranty of their promise. It was essential therefore, in order to charge the defendant upon this contract, to prove a new and independent consideration in addition to that on which the note was founded. Not being a surety acting upon the same consideration with the original promisors, he could be held liable only by proof of some damage or loss to the plaintiff, or some benefit or advantage to the defendant, as constituting a legal consideration for his contract. Tenney v. Prince, 4 Pick. 385. Mecorney v. Stanley, 8 Cush. 85.
It was not sufficient, therefore, to declare against the defendant as upon a promissory note, where, according to the rules of pleading, the mere statement of the liability which constitutes the consideration is sufficient; but it was necessary, as in all cases of simple contracts, that the declaration should disclose a consideration, either of benefit to the defendant, or of detriment to the plaintiff; as otherwise it would appear on the face of the declaration to be nudum pactum. 1 Chit. Pl. (6th Amer. ed.) 321. 1 Saund. 211, note 2. Jones v. Ashburnham, 4 East, 455.
This well established rule of pleading is not changed by St. 1852, c. 312. On the contrary, § 2 of that statute requires, by
It is manifest upon the bill of exceptions that the plaintiff at the trial relied only upon his second and fourth amended counts, in which he sought to charge the defendant on his collateral undertaking as guarantor of the notes described in the declaration. These counts were clearly sufficient; and if the plaintiff had proved his case as laid, he would have shown a good ground of action. There was no defect in either count, which would have been good ground of demurrer. The objection is not, that the consideration of the contract is not sufficiently averred; but it is that the averment of the entire consideration was not supported by the proof, and that there was therefore a fatal variance in the statement of the contract.
It is a familiar rule of pleading in assumpsit, that the consideration, which forms the basis of the contract, must be set forth with great accuracy, as otherwise the whole contract will be misdescribed. This rule, as already stated, does not apply to promissory notes or bills of exchange, which of themselves imply a consideration; but it includes all other simple contracts and promises, where the plaintiff, in order to sustain his action, is bound to prove a consideration. It is not sufficient to prove part of an entire consideration; nor is it a compliance with the rule, to omit proof of a portion of a consideration consisting of several things. The evidence must show neither more nor less of the consideration than is alleged. It must be proved to the extent alleged, otherwise the variance will be fatal. If the proof exceeds the statement of the consideration, or falls short of it, it is equally a misdescription, and does not support the declaration. Thus it has been held, that if two good considerations are alleged, and one of them is not proved, or is found false by the jury, the
The application of this rule to the case at bar fully sustains the ground taken by the defendant at the trial. The second and fourth amended counts both aver two good and distinct considerations, either of which were sufficient to support a promise. In each it is alleged that the consideration of the defendant’s promise was forbearance by the plaintiff to sue the original parties to the note in compliance with an agreement to that effect, and also that the plaintiff deposited in the hands of the defendant funds and securities to indemnify him for his promise. The evidence tended ‘to prove the former of these allegations; but there was no proof in support of the latter. Under these circumstances it was the duty of the judge to instruct the jury, according to the request of the defendant, that the plaintiff was bound to prove the whole considerations as alleged; and his refusal to do so is good ground of exception. Being a defect in the proof, and not in the declaration, it is not, as urged by the plaintiff, aided, or cured by the verdict.
But although the objection was well taken by the defendant, it is of a strictly technical character, and in no way affects the merits of the case ; nor was the defendant at all prejudiced or injured by it in the trial of the case. A good consideration for the defendant’s promise was averred, and the verdict of the jury has found that it was proved to their satisfaction. An amendment striking out this part of the consideration, of which there was no proof, will cure the defect, and entitle the plaintiff to hold his verdict. Such an amendment the court are authorized to allow under Rev. Sts. c. 100, § 22, and St. 1852, c. 312, § 3.2;
The remaining objections insisted on by the defendant are untenable. The placing of the name of Snow on the note under the circumstances proved did not constitute an alteration of the contract of the original parties. It did not in any way change or affect their rights. It was a new and independent contract, made on a sufficient consideration with a third party, to which their assent was unnecessary. The validity of such contracts have been often recognized in this commonwealth. Tenney v. Prince, 4 Pick. 385. Bryant v. Eastman, 7 Cush. 111. See also Catton v. Simpson, 8 Ad. & El. 136, and 3 Nev. & P. 248; Hughes v. Littlefield, 18 Maine, 400; Powers v. Nash, 37 Maine, 322.