12 Ga. 52 | Ga. | 1852
By the Court.
delivering the opinion.
The plaintiff in error claims the money under the agreement made between himself and Philips. The Court held that there was no legal consideration for that agreement, and for that reason ordered the money to be paid to Philips’ executions.
Philips’ executions against Foster, the defendant, were of older date than the one controlled by Tompkins ^gainst Foster, and on that account were entitled to priority of payment out of any money which might be raised by levy and sale of the defendant’s property.
Tompkins insisted that Philips should levy his executions on Louisa and her three children, assuring him they were subject to the payment of Foster’s debts, and offered to indemnify him for costs, &c. Philips declined doing so, saying that he knew that the negroes were not subject to the payment of Foster’s debts,
The fi.fa. controlled by Tompkins, was one which had been obtained against Foster and himself, as Foster’s security on appeal in favor of Brooks, administrator of Smith. Subsequent to the verbal agreement between Philips and Tompkins, Philips executed a written release and relinquishment of all lien or legal claim, created by his fi.fas. on the negro slave Louisa and her three children then levied on by a fi.fa. of Wilson Brooks, adninistrator of George M. Smith, vs. Charles Foster and Nicholas 'ompkins. This relinquishment was drawn up at the request of both Tompkins and Philips, and signed by the latter, who ren irked at the same time, that he knew' Tompkins could not con Vmn the negroes, but if he could condemn them, he w>as wml ne to do so, and that he would not claim any of the money, it w'ould levy his executions on a negro by the name of Jordat if he got the opportunity. Was there a sufficient legal consideration for this agreement between Tompkins and Philips ? “ Any benefit accruing to him who makes the promise, or any loss, trouMe, or disadvantage undergone by, or charge imposed upon him to whom it is made, is sufficient consideration, in the eye of the law, to sustain an assumpsit.” Smith on Contracts, 87. The consideration upon which an assumpsit shall be founded, must be for the benefit of the defendant, or to the trouble or prejudice of the plaintiff. 1 Comings Dig. 297, letter B — Consideration.
[2.] Damage tdls \e promissee, as well as benefit to thepromissor, is a sufficient consideration to support a promise. Forster vs. Fuller, 6 Mass. Rep. 59. Townsby vs. Sumral, 2 Peters’ Rep. 170. The cc isideralion upon which an assumpsit is founded must be either for the benefit of the defendant, or to the trouble or prejudice of the plaintiff. Powell vs. Brown, 3 John. Rep. 104. These principles wTere recognized by this Court in Austell vs. Rice, 5 Geo. Rep. 476. The levying upon the property with his execution by Tompkins; the prosecuting the claim
Tompkins, acting upon this admission and declaration of Philips, did not only risk his money, but his time and trouble, for the condemnation of the property; and when it was condemned and brought to sale, Philips, repudiating his admissions and declarations, comes forward and claims the money — which fair dealing and good faith, in our judgment, forbid him from doing. Let the judgment of the Court below be reversed.