Hubbard v. Coolidge , 42 Mass. 84 ( 1840 )

Putnam, J.

It is admitted that the jury have not allowed to the defendant the amount of money which he paid on the noto for $26,250, on the 15th of July, 1829, according to the agree ment made at Nahant in 1830 ; and the reason given for the disallowance is the want of consideration for so much of the agreement. The plaintiffs deny that the sum of $ 6,459, which was paid by the defendant and indorsed on the note, was ever intended to be credited. But they allow the agreement, so far as it concerns the giving up of the note itself. The agreement is in the words following, u Nahant, August, 1830. I agree with Cornelius Coolidge to give up his note for the Ware stock, and allow him in account the sum paid thereon, at the time of his failure ; [intending to put him in the same situation in respect to the Ware stock, that Mr. S. Hubbard has placed him in relation to the Canton stock] depending on his exertion to free me from that concern without further loss, and that nothing is to be said to Mr. Sturgis, or any one, till the settlement of accounts. John Hubbard.”

It has been deemed important to determine whether the future services of the defendant were to be rendered, upon the notice and request of Mr. Hubbard, to the Ware concern or the Canton concern. On the part of the plaintiffs, it is contended that they related to the Ware concern, which had been fully settled ; and so that no services of the defendant would ever be wanted or required, and therefore that there was no consideration to Mr. Hubbard for the engagement to repay the money which the defendant had paid upon the Ware stock note. And we are inclined to the opinion, that the intent of the parties was, that the defendant’s exertions were to be rendered in relation to the Ware, and not in relation to the Canton concern.

The subject of the agreement was the note which the defendant had given for the Ware stock, which note the testator then held. The sum paid on account of that note was agreed to be repaid ; and the situation in which the- defendant was to be placed and left, in relation to the Ware concern, was explained by reference to a similar arrangement relating to the Canton concern, where the defendant was allowed the whole that he had paid upon it. The Canton concern is thus incidentally introduced, and if the words which I have placed between brackets be read as a parenthesis, it would be perfectly clear that the agreement related to the Ware concern.

The testator was to give up the defendant’s note for the Ware stock, and allow him in account the sum paid thereon at die time of his failure, depending on his exertion to free Mr. H. from that concern without any loss, — reading the paper without the parenthesis. If that should be read afterwards, 1 ‘ intending to put the defendant in the same situation in respect to the Ware stock, that Mr. S. Hubbard placed him in relation to the Canton stock,” it would, by way of reference, clearly indicate the terms of the agreement. Mr. S. Hubbard had allowed the defendant all that he had paid on the Canton stock, for the services which he had rendered to the testator relating to that stock. We proceed upon the ground that the services, which the testator depended upon, were to be performed in relation to the Ware stock or concern.

But it is argued for the plaintiffs, that the verbal agreement did not embrace the money which the defendant had paid upon the note for the Ware stock, but merely the note itself, which was agreed to be allowed, on account, when the Ware concern was settled; and that the plaintiffs are willing to give the defendant credit for that amount. It is true that the defendant considered that the Ware concerns were settled, and that he was entitled to have his note ; but from some cause or other the verbal agreement was not carried into effect. The parties afterwards met at Nahant, and entered into the written agreement which is now under consideration. And it has been argued for the plaintiffs, that the writing was intended to include only what before had been verbally agreed ; and that there was mistake or misrepresentation, or no consideration for the part of the written contract which exceeds what had been some time before agreed upon. It is not denied that there was a good consideration foi that part of the agreement, by which the testator was to allow to the de'’"ndant, on account, the amount then due on the note; indeed there could be no foundation for such denial. The situation of the parties is to be taken into consideration. The testator had capital ; the defendant had skill. The testator became a stockholder in the Canton and also in the Ware concern, and was apprehensive that his property would be lost or greatly impaired from his ¡ability, as a stockholder, for the debts due from these several companies.

In this extremity, the services of the defendant were put in requisition. And so far as they related to the Canton concern, it is conceded that they were eminently adapted to the occasion. They were performed under instructions of Mr. S. Hub bard, (which were read at the argument,) and the testator was relieved from the Canton concern. And he was desirous that the defendant should do the same thing in relation to the Ware liability.

The testator would have transferred his stock to the defendant, without his consent. But to that the defendant objected, as soon as the testator’s intent became known. The defendant would not assume the liability without some substantial reward. He undertook the risk and liabilities, at the earnest request of the testator, in consideration of having the amount due upon the note for his Ware stock allowed him on account. This makes the first part of the written agreement. It was not upon a past consideration, (which, technically considered, is for services performed without request, 01 a mere voluntary courtesy,) but upon services rendered upon request. And so far the plaintiffs admit that the agreement should be carried, into effect.

But the last part of the agreement, that is, to allow the defendant the sum he had paid, and which was indorsed on the note, is controverted.

We are then to consider whether, from the paper itself, and the evidence, any consideration appears for it. The affairs of the Ware Company were represented by the defendant to have been settled at the time when he claimed of the testator the performance of his verbal agreement. But for some reason or other he did not comply with the request.

The parties afterwards met, and in a conversation the defend* ant complained that there was no inducement for him to exert himself in the testator’s service, as that verbal promise had not been performed ; and thereupon the testator professed a willingness to give his written undertaking. The parties then went into a house, and the result was, that the agreement now under consideration was made.

It must be recollected that the testator, at the time when the defendant called on him to give up the note, expressed an apprehension that notwithstanding he had transferred the stock, he might still be liable for assessments. The verbal agreement related to the services which the defendant had performed at the testator’s request. And the defendant considered that the testator was relieved, and claimed the note. But the testator was apprehensive still. How could it be ascertained with certainty, that he was free from all future liability ? Was it certain that no other creditors of the company, would appear, and that no further claims, at least, would be made upon him, growing out of that disastrous affair ? His desire was to secure the future services of the defendant, if there should be any necessity for them, and he expressed this reliance upon the defendant in the paper itself. It was accepted by the defendant upon the terms or condition expressed.

Was this giving something for nothing on the part of the testator ? We think not. We cannot estimate, as the parties could, the benefit to one or the inconvenience to the other. The law does not nicely weigh the amount of benefit to one party, or injury or loss to the other, which will make a legal consideration.

Besides, it is to be recollected that the testator was known to be a man of great sagacity as well as of property. His connexion with the defendant, in matters of business or speculation, had been somewhat extensive. They dealt in large sums, and the amount which was to be allowed to the defendant was not a present payment of cash, but an item to be put to the credit of his account, which still remained open. Again, in regard to the benefit to the testator. He knew full well the eminent services which it would be in the defendant’s power to render him, if there should be future claims upon him. It would have been extraordinary if he should not have desired to secure those services. The promise was, not to pay something for nothing, but something for services thereafter to be rendered, upon request, if the promisor should want them.

It is said, that the defendant has not rendered any services for the testator, since the agreement. If it be so, it does net appear that there has been any necessity for them, nor that any request has ever been made of him, or any denial by him to render any service. It was sufficient for him to wait until his services should be called for.

It is not material by which of the parties to an.agreement the words are spoken, if the assent of the other appears. The intent is to govern. Thus if a man makes a feoffment in fee to one, ad erudiendum his son in such an art, that is a condition; and yet it is not spoken by the feoffor any more than by the feoffee ; but the words purport the intent of the parties. Plowd. 142. So a grant of an annuity to one, pro consilio impendendo, is a grant conditional, and although there is not any word of condition in the case, yet it is all one as if the grant of the annuity had been upon a condition that he should give him counsel. Plowd. 141. And in such case if he will not give the coun sel, the other may detain the annuity. See also Dutton v. Poole, 1 Vent. 318. Cowp. 443. 3 Bos. & Pul. 149, note. Shepherd v. McEvers, 4 Johns. Ch. 136.

It is not essential that the consideration should be adequate in point of actual value. It is sufficient, if a slight benefit be conferred by the plaintiff on the defendant, or on a third person, or if the plaintiff sustain the least injury, inconvenience, or detriment, or subject himself to any obligation without benefiting the defendant or any other person. Chit. Con. 7. It is not necessary that the mutual promise be directly proved, provided it be fairly presumed. 2 Evans’s Poth. 22. (Philad. ed.). E. g. a promise of marriage, from the general tenor of conduct.

Now the agreement under consideration is very clear in its terms. The promise to pay, depending upon the defendant’s exertion to free the testator from further loss, was in its nature conditionaland the acceptance of the writing by the defendant was an undertaking to comply with the terms therein expressed. If the testator had complied on his part, and taken up the contract, he would have had sufficient evidence, in the handwriting of the defendant himself, of his undertaking. The motive that influenced the testator plainly appears. The defendant had succeeded in relieving him from his connexion with the Canton concern, and he had allowed the defendant all that he had paid on that concern. He had effected the same desirable object also in relation to the Ware concern, so far as he knew or believed ; the testator, however, did not feel entirely safe from future liabilities. Well founded or not, such appeared to be his doubt or suspicion. ' He therefore thought it best to secure the future services of the defendant, and agreed to place him upon the same ground in relation to the Ware concern, as he had been placed in regard to the Canton concern ; and that arrangement could be effected only by. crediting him with all the money he had paid on the note for the Ware stock, as well as with the note itself. We must presume, therefore, that the testator caused one of the motives which led to the settlement to be inserted in the writing, namely, that he depended upon the defendant’s exertion to free him from the Ware concern without further loss. And the defendant accepted the agreement accordingly. Upon this consideration the agreement was executed and delivered. It is no answer to say, that the defendant’s services might never be called for. He was retained, to say the least; and whether, if his services should be called for and rendered, they would prove more or less valuable to the promisor, or more or less inconvenient to himself, it is not material for us to determine. It was said, however, that this written agreement was made upon a mistake, or misrepresentation ; but there is no evidence to prove it. It was. made after the verbal agreement, embracing that and more ; and it was made by individuals in every respect perfectly competent to weigh and understand the motives and reasons which led them to make it. And we think the jury, from the evidence in the case applicable to the agreement itself, were not warranted in rejecting the same as without consideration. A new trial is to be had, and the jury is to be instructed conformably to this opinion ol the whole court