63 Tenn. 569 | Tenn. | 1874
delivered the opinion of the Court.
Henry Turney was' guardian for the heirs of Pigg. Before the year 1857 a tract of land was sold by order of the Chancery Court, and purchased by Den-ham, and his note given the Clerk and Master for the purchase money. The note fell due, and in 1857 an arrangement was made between Denham and Turney, for Denham’s accommodation, that Turney should take Denham’s note for the amount due his wards, as cash, and Turney, as guardian, hold the debt against Den-
This was done, Turney holding the note, one payment, of perhaps $145, having been made on it in 1860. In 1863, Denham made payments on the note, as is alleged in the bill, in Confederate money, amounting to between $1,000 and $1,100. It is also charged that these payments were received under duress. We may dismiss this ^particular question, however, by saying, that it is not made out by the proof, and is not seriously insisted on in argument.
The matter remained thus settled until after the war, when Denham, having heard that Turney intended to sue him to avoid the Confederate payments, called on Turney and said to him, to use his own language, that he understood he was going to souse down on him about the Confederate money paid. Defendant admits in his answer that when Turney told him he would be compelled to do so, that he told him not to sue, and he would pay the Confederate money over. This was in 1866. The charge in the bill is specific as to this new promise, and is substantially admitted in the answer.
It is further shown in the proof that complainant forebore .to sue, relying on this promise. That Den-ham fixed, perhaps twice, the time when he would be able to get up the money, but failed to do so. At
The question first presented for our decision is, can this new promise be supported and enforced?
The case of Vance v. Smith, et als., 2 Heisk., 344, is cited as holding such promise void for want of consideration. It is true, Judge Nelson incidentally remarks in that case, that the promise to take the money back, made next day after the payment, could not be enforced for want of consideration; but this is a mere dictum, as it appears no such case was made out in the proof, and the case, as to this question, was decided on a different ground, the one suggested not being in judgment before the Court.
At the present Term we have held, in a case where a party agreed to re-pay a Confederate payment to a guardian, under circumstances very similar to this, that the promise could be enforced; that a threatened litigation, in which the party, as the law was then held, might have succeeded, with delay of suit in consequence, or in pursuance of the agreement, was a sufficient consideration to support sueh promise. We think this case as strong as that. Here the guardian has had judgment against him in the County Court' for this money received by him, has delayed to sue for up
The next question is, what amount of Confederate money was paid? The bill alleges ‘ between $1,000 and $1,100. The answer denies this, and says, definitely, it was buff* $300, the balance in Tennessee and other Southern bank paper. As the allegation is of a promise to re-pay the Confederate money, we must endeavor to ascertain the amount included in the promise. The complainant alleging a promise to pay the Confederate money, has the burden of proof on him to show the amount he claims. The proof is exceedingly unsatisfactory on the question. The payments seem to have been made at two different times. Henry Turney, the complainant, proves positively, as his recollection, the whole amount paid was in Confederate money. We must treat this as evidence, as we find no exception to its competency in the Court below, though it seems Denham's death during the progress of the suit would have rendered it incompetent had such objection been made. His daughter also proves she saw the money, and thinks it was all Confederate money. On
The only other question before us is on exception of Turney, against a charge of interest on funds in his hands during the war. We think he should be charged with interest, except on the amount received on the Denham note, which he could not use or loan out. As to the balance, as he recovers interest from Den-ham, he shall, pay it, and thus be even on this score.
We cannot consider exception of the heirs of Pigg, as they have not appealed.