Whitney v. Stearns , 16 Me. 394 ( 1839 )

The opinion of the Court was drawn up by

Emery J.

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 benefit be conferred by the plaintiff on the defendant, or at his request on a third person at law; and that mere folly and weakness, or want of judgment, will not defeat a contract even in equity, when the folly is not so extremely gross, as that, with other facts in corroboration, does not establish a case for relief, on the ground of fraud. How then is the validity of the contract, upon this requisite, to be exhibited ? It is not to be supposed, that a contract has not any effect on an admission against a party, because it is not under seal. So far from this, an admission, in such a contract, is strong presumptive evidence against the parly, though it is not conclusive. For the person sought to be charged is not absolutely concluded from shewing the real truth. Chitty on Contracts, 5. A cent or a pepper corn, in legal estimation, would constitute a valuable consideration. Where then was the incorrectness of the direction to the jury on this point ? We perceive none. If a man will deliberately confess that he has received a valuable consideration for his promise, the burthen ought surely to rest on him to shew that he was under a mistake. Should he fail of doing so, tho consideration is proved. Could a jury hesitate in awarding a verdict against him, were he to appear before them, and avow, that he had received a valuable consideration for entering into the contract they were to deliberate upon ?

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.