Maynard v. Maynard , 105 Me. 567 ( 1909 )

Whitehouse, J.

This is an action against the drawer of an order for the sum of $808.34. The plaintiff is the son of the principal defendant, and the alleged trustees Carey and Getchell were constituted trustees by virtue of a trust deed from one John F. Harmon by the terms of which personal property of the face value of $42,000 was assigned to the said Carey and Getchell, upon the condition and stipulation among others that they should pay to the defendant "so much of said annual income as they in their judgment deemed to be necessary for the comfortable support of the said Lauretta, but in no event are they to pay her any part of the principal trust fund.” The trustees refused to accept the order. It appears from a copy of the order (made a part of the case by agreement of the parties) that the defendant directed her trustees to pay the amount named from her "interest and income account.” It will be seen from the terms of this order that the sum to be paid was not payable absolutely and at all events, but was payable out of a particular fund, namely, her interest and income account.

"The drawer of an order payable in chattels or out of a particular ' fund does not undertake that he will pay the amount of the order in case the drawee refuses or fails to comply therewith. . . • . No

•suit can therefore be maintained by the payee against the drawer upon an instrument of this character ; the payee is the mere assignee of the property, and if he fails to receive it, his remedy is in an action on the original consideration or cause of action against the drawer.” 21 A. & E. Enc. Law, 940.

The defendant accordingly contends in the first place that the action is not maintainable because the order cannot be treated as a bill of exchange. But it is further contended that even if the order carried with it the mother’s implied promise to pay it if her trustees did not, the action is not maintainable for the reason that the only consideration for the order is shown by the evidence to have been love and affection and not a valuable consideration.

"A valuable consideration is necessary to support any contract, and the rule makes no exception as to the character of the consideration respecting negotiable instruments when the consideration is open to inquiry. Therefore, a consideration founded on mere love and affection, or gratitude, is not sufficient to sustain a suit on a bill or note; as, for instance, when a bill or note is accepted or made by a parent in favor of a child, or vice versa, it could not be enforced between the orignal parties, the engagement being gratuitous upon what is called a good, in contra-distinction to a valuable consideration.” 1 Daniel Nego. Inst. (4th Ed.) sec. 179.

"A good or meritorious consideration will not suffice to support a simple contract. A promise founded upon considerations of affection or gratitude is deemed in law a mere beneficence and cannot be the foundation of a legal action.” 6 A. & E. Enc. of Law, 679. Fuller v. Lumbert, 78 Maine, 325.

Inasmuch as it clearly appears from the plaintiff’s own testimony that this was an unsuccessful .attempt on the part of his mother to make him a present of the amount named in the order and the only consideration for the order was beneficence, the certificate must be,

Judgment for the defendant.