16 Me. 394 | Me. | 1839
The opinion of the Court was drawn up by
There appears to be some singularity in the wording of the writing called the obligation, dated Feb. 16, 1837, contrasted with the statement of the evidence in relation to the trial. According to our copy, the engagement is to be responsible to the plaintiff for what he “ may recover of Ezekiel Stearns before referees, to whom is referred a demand made by the plaintiff against said Ezekiel Stearns and Moses Stearns.” Why the stipulation should be adopted in that form, unless Moses assumed the relation of a co-defendant with Ezekiel for his benefit, or surety for him in the reference, is not easy to discover. Be that as it may, what we have now to settle, is the correctness or incorrectness of the Judge’s instructions. The question of consideration was left to the jury on the statement to them, that the admission by the defendant in the contract, that it was made for a valuable consideration, was evidence of that fact to be submitted to their consideration.
Generally, in an action upon a simple contract the plaintiff must allege and prove a consideration. The consideration of an agreement, or even a negotiable bill or note, may be inquired into between the immediate parties; as between the drawer and acceptor of a bill, maker and payee of a note, or between an indorser and his immediate indorsee. Valuable considerations may arise by benefit to the party promising, or to another at the promiser’s request, or by the promisee’s sustaining loss or inconvenience, or becoming liable to charge or obligation at the request of the promiser, though he derive no advantage from it. But a promise to indemnify a plaintiff against the costs of an action for publishing a libel against a third person, at the defendant’s solicitation, would be void. Shackell v. Rosier, 2 Bing. N. C. 634, in 29 Eng. Com. Law Rep. 438.
It is said, that it is not essential that the consideration should be adequate in point of actual value, that it is sufficient that a slight
The second instruction was, that the collateral remedy pursued by the plaintiff on the bond would not defeat his action on the contract, he not having obtained satisfaction on the bond. The bond spoken of was voluntarily given by Ezekiel Stearns, without consent or agreement of the plaintiff, and which the plaintiff could not prevent. Its operation was to postpone the redress of the plaintiff. But we cannot hold, that the commencing of an action upon it, vacated other collateral security, which the plaintiff possessed, unless payment was obtained. There was no express stipulation in the bond that the remedy by action or any other collateral security should not be adopted. Ernes v. Widdowson, 4 C. & P. 151.
The bond was not accepted in satisfaction of the collateral security by the plaintiff.
Judgment must therefore be rendered on the verdict without deduction.