Townsend v. Neuhardt

139 Tenn. 695 | Tenn. | 1918

Mr. Chief Justice Neil

delivered the opinion of the Court.-

The defendant in error had a' judgment against one Thompson. Pie caused an execution to be issued ón the judgment, and had plaintiff in error summoned as garnishee. The. hearing of the garnishment was set for a day in July. At the time plaintiff in error was summoned he and Thompson had in contemplation a trip to be made by the latter to Pennsylvania to consummate a deal in coal lands. Under an agreement between plaintiff in error and Thompson, if the deal went through, the former was to receive $7,500. He was therefore desirous that Thompson should'make the trip. Thompson had also been summoned for examination in the garnishment proceedings against Townsend, and he conld not make the trip if he had to remain for that examination. • So, in order to release Thompson for his trip, plaintiff in error promised Neuhardt that he would pay him $100, to he subsequently credited on the judgment, if he would continue the garnishment hearing to a day in the future agreed upon. The continuance wa granted, and Thompson made the trip, but nothing whs ever realized. Thereafter plaintiff in error refused to pay the $100. He was then sued in the present action, and pleaded the statute of frauds, on the ground that the promise was made to answer for the debt, default, or miscarriage of another and was not in writing. He also insisted that there was no consideration. The trial judge rendered judgment against the plaintiff in error. He thereupon appealed to the court of civil appeals, where this judgment was reversed. That learned court held that the contract for the payment of the $100 was a direct one between the plaintiff in error and the defendánt in error, but that it was without consideration. The case was then brought to this court on the writ of certiorari.

We are of the opinion that the judgment of the court of civil appeals must be reversed, and that of the trial judge affirmed. The promise certainly was direct and clear from plaintiff in error to the defendant in error. When such is the case, the statute of frauds does not apply. Lookout Mountain Railroad Co. v. Houston, 85 Tenn., 224-226, 2 S. W., 36; Brown v. Bussey, 7 Humph. (26 Tenn.), 573, 574; Hall v. Rodgers, 7 Humph., 536, 540, 541; Mills v. Mills, 3 Head (40 Tenn.), 705, 711. The consideration was equally clear. There was a benefit to plaintiff in error in securing the release of Thompson in order that he might make his trip and effect the deal by which plaintiff in error expected to profit to the extent of $7,500. It is immaterial- that the expectation did not eventuate in realization, so far as concerned the receiving of profits, since there was a benefit to plaintiff in error in the opportunity afforded to make the effort to secure the gains which he contemplated. The extent of the benefit is not material so far as the existence of the consideration is concerned. Randle v. Harris, 6 Yerg. (14 Tenn.), 508, 509. Furthermore, the forbearance on the part of defendant in error to press his action under the garnishment proceedings for a stated time was likewise a consideration for the promise. It is true that, when the garnishment proceedings, though instituted on a valid judgment against Thompson, were subsequently decided, it turned out that defendant in error took nothing by them. This, however, cannot lessen the importance of the fact that the forbearence itself was a concession by the defendant in error to the plaintiff in error of a part of his rights, and was therefore to that extent an injury to the former. Tappan v. Campbell, 9 Yerg. (17 Tenn.), 436; Cathcart v. Thomas, 8 Baxt. (67 Tenn.), 172; Rivers v. Thomas, 1 Lea (69 Tenn.), 649, 650, 27 Am. Rep., 784. So, in either view, there was a consideration. Macon v. Sheppard, 2 Humph. (21 Tenn.), 334, 338. In order to support a contract, the consideration does not have to be adequate; it need only he valuable. McCarty v. Blevins, 5 Yerg. (13 Tenn.), 195, 196, 197, 26 Am. Dec., 262.

The foregoing principles fully support the conclusion we have reached.

The result is the judgment of the court of civil appeals must be reversed and that of the trial court affirmed.