Valentine v. Foster , 42 Mass. 520 ( 1840 )

Shaw, C. J.

The single question in this case is, whether a preexisting liability to contribution, voluntarily released, by the party to whom it is due, to the party liable, in order to qualify him as a witness in a trial at law, between the releasor and a third party, is a good consideration for a subsequent promise to pay such contribution.

This action is one of new impression, and attempts to carry the doctrine of legal liability, arising upon an express promise made in consideration of moral obligation, somewhat further than it has yet been carried.

It is difficult to reduce this principle to a rule sufficiently accurate for practical use, on account of the looseness and uncertainty attending the notion of moral obligation or moral duty.

In Mills v. Wyman, 3 Pick. 207, where the subject was largely discussed, it was attempted to restrain and limit the generality of the principle broadly laid down, that a moral obligation is a sufficient consideration for an express promise, by confining it to cases where there has been some preexisting legal obligation. which has become inoperative by force of positive law ,• and the cases of debts barred by the statute of limitations, by a discharge under bankrupt and insolvent laws, and debts incurred by infants, are put by way of illustration. But it is difficult tc reconcile all the cases on the subject, upon this principle. Le v. Muggeridge, 5 Taunt. 36.

In some other cases, another distinction has been somewhat relied on, to wit, when there is or would be a legal obligation, but where the remedy is taken away by positive law, or where the obligor is exempted from legal liability on considerations of policy. The only case I have found, where an action has been held to lie upon an express promise to pay a debt, which had been voluntarily released, is that of Willing v. Peters, 12 S. & R. 177. It was a case where the debtor, having become insolvent, made an assignment for the benefit - of all his creditors, containing a clause of release on the part of the creditors, in consideration of the assignment. A dividend had been received by the plaintiff, the creditor, "after which the debtor made an express promise to pay the balance of the debt, when he should become able. There, although it was argued that the release was voluntarily made, and though it actually extinguished the whole debt, by an instrument under seal, which imported a consideration, yet the analogy was so strong to the case of a discharge under a bankrupt or insolvent law, in which it had always been held, that an action might be maintained on an express promise to pay the balance of the debt, that the court decided in favor of the plaintiff.

But we think there are several considerations which distinguish the present case from that cited.

We are then to consider, that in becoming party to an assignment made by an insolvent debtor, the release is executed at the request and for the benefit of the debtor. And it has an important bearing, in all those cases, that the discharge or exemption, by which the debtor is held not liable to an action', is created for his benefit. Then applying the rule, that a party may waive an exception made for his benefit, and that he does waive it by an express promise, it affords a strong legal ground for the maintenance of an action upon such express promise. 21 Amer. Jurist, 278. 3 Bos. & Pul. 249, note. But in case of a release given in court to qualify a person as witness, the act can in no sense be regarded as done at the request or for the benefit of the releasee. On the contrary, the act is for the benefit of the releasor, that he may have the advantage of the releasee’s testimony ; and the understanding in all such cases is, that he prefers relinquishing forever any actual or contingent claim which he may have upon the releasee, rather than forego the advantage he expects to derive from his testimony.

We also think there is another distinction between the case at bar and the case cited, founded in obvious and strong considera tions of policy. A release given to qualify a witness is usually given in open court, in presence of the jury. It must be full and complete, to the satisfaction of the court; it is exhibited and represented as an absolute and complete discharge of all interest in the event of the suit. If it should come to be consider ed that such a release merely took away a legal remedy, that it left the moral obligation subsisting in its full force, and that the legal obligation would be revived by expressions on which it might be left to a jury to find a promise ; it would introduce an element of doubt, as to the force and effect of such a release. It might well be argued that it was merely formal, and left the witness still substantially interested; and would have a secret injurious effect upon the credit due to released witnesses.

Without therefore giving an opinion in reference to a case where a creditor has executed a release, to enable an insolvent debtor to obtain his discharge under a general assignment, the court are of opinion, that where a release has been voluntarily executed and delivered by a creditor to his debtor, for the express purpose of discharging all interest, and qualifying him as a witness for his own benefit, there remains no moral obligation to pay the debt, which is sufficient to afford a consideration for a new promise upon which an action will lie.

Nonsuit to stand.