Winslow v. Wood

70 N.C. 430 | N.C. | 1874

Reads, J.

The plaintiff sold to the defendants a mule and took their bonds for the price. The mule had a latent disease-of which it died in a few days without having rendered any service of value. There was no warranty and no scienter on the part of the plaintiff. The action is upon the bond.

The question is whether there is such a failure of consideration as to render the contract void and prevent a recovery on the bond ?

At law a bond is good without a consideration. It is bad, not when there is no consideration, but only when there is an illegal consideration. At law, therefore, the defendant would have no defence. But we now administer law and equity both in the same action ; so that we have to consider whether there is any defence in equity.

The rule is not, that equity will relieve against or declare void a contract because there is no consideration ; but the rule .is that it will not enforee the performance of a contract without a consideration. And even then it does not require an adequate or full, but only a valuable consideration unless the value is so inadequate as to prove fraud or imposition. Adams JEq. 79.

In our case fraud and imposition are negatived.

The class of cases where equity relieves against a contract for want of a consideration is where the parties supposed there was a consideration and it turns out that they were mistaken, and that the supposed consideration was non-existent. The case put by Mr. Adams is, “ where the subject of sale-is a remainder after an estate tail; and the estate tail without .¿he knowledge of either party had been previously barred.” Adams Eq. 188. And so in our case, if the mule had been dead at the time of sale without the knowledge of either .party. B.ut such was not the fact. There was no mistake about it. The mule was present, and was just what it appeared to be, a mule. And although it was not intrinsically as valuable as it was supposed to be, yet it was of some value, a market value to the full amount of the bond. And we have ;seen that mere inadequacy of consideration without fraud or imposition will be no objection even where equity is invoked .to enforce.specific performance, much less where it is invoked to relieve against a contract. So, counterfeit money as a payment, or as a consideration, will be treated as a nullity; but the bills of an insolvent bank used without fraud as a payment or as a consideration, will be treated as a valuable although an inadequate consideration. So a bag of sand sold in fraud or by mistake for a bag of guano would be a total failure of consideration, and the contract would-be null; but a bag of inferior gnano would only be a partial failure of consideration, and would support the contract so as to enable the vendor to recover. And whether the vendee would have a counter-claim against the vendor, would depend upon circumstances; as, whether there was warranty or deceit. C. O. P. sec. 101.

There is no error. Judgment affirmed and entered here for plaintiff.

Peb Cubiam, ' Judgment affirmed.