Williams v. . Chaffin , 13 N.C. 333 ( 1830 )

FROM SURRY. Judgment being rendered against Mosby alone, the defendant, two days afterwards, prayed an appeal, the bond for which was executed by the plaintiff's testator, and was signed by the defendant and another, at the request of the defendant as sureties. (334)

The judgment was affirmed in the Superior Court and the plaintiff's testator had discharged the whole of it. At the time of his promise the defendant had fully administered all assets of his intestate which had come to his hands, and since then had received no other.

In the Court below it was contended for the plaintiff, first, that he had a right to recover the whole debt upon the promise of the defendant; and second, that the plaintiff's intestate was injured by the appeal, as in consequence thereof he had an additional amount of costs to pay, and also was prevented from taking steps against the defendant to subject him, as administrator, to the amount of the debt. His Honor informed the jury that if the plaintiff's testator had been injured, or put to inconvenience, or delayed from proceeding against the defendant, as administrator, by the promise of the defendant, he was entitled to recover in this action. That if the defendant had no assets of his intestate at the time of making the promise, then so much of the consideration of that promise which depended upon his having assets, failed, and the plaintiff would be entitled to damages only to the extent of the injury he had sustained in consequence of the appeal and of the delay incident thereto.

A verdict was returned for the plaintiff for the costs of the Superior Court.

Upon a rule for a new trial his Honor expressed himself dissatisfied with the verdict, as he thought the plaintiff had recovered too much; but as the defendant acquiesced in the finding the rule was discharged, and the plaintiff appealed. A promise by an executor to pay a debt to a creditor of the testator is void unless the (335) executor have assets; for his liability to pay, which depends upon the having assets, is the consideration of the promise. Sleighterv. Harrington, 6 N.C. 332. This is, however, where the assets form the sole consideration, and the obligation to pay can never exceed the amount of the assets in the executor's hands. The executor may, however, render himself personally liable for the testator's debt by a promise founded upon another adequate consideration, although he have no assets. As if the promise in consideration, of the creditor's doing any other act causing benefit to the promiser or loss to the other party. This act, which constitutes the consideration, is not required to appear to the Court as adequate in point of value. The parties are the judges of that, and unless it be so grossly inadequate as to show palpably the whole contract is founded on a mistake all around, or that one has not a capacity to make a bargain, the stipulations will be enforced. An instance where they will not be is given in the sale of a horse, for a penny for the first nail in his shoe and doubling each time for the others. But, with such exceptions, the rule is general that an act to be done by one party to his own prejudice or to the advantage of the other will support a promise by the latter. If I promise to give A one thousand pounds if he will go to Philadelphia, I am bound to pay, though the compensation is enormous. If I agree with B that if he will bring suit and fail in it I will pay the costs, or any other sum of money, it binds me; for it may be a prejudice to B to sue. If, therefore, in this case it had appeared that the defendant's, promise was that if Mosby would appeal, he, the defendant, would pay the debt, it would not be material whether Chaffin had assets or not. There would be a sufficient consideration to support a promise, and the only question would be one of fact, (336) whether the promise, as made, extended to the debt or to the costs only. If the promise expressly embraced the former, it must be enforced as to that as well as the costs. For any consideration is sufficient to support the whole promise. But the Court would not strain the construction of what passed between the parties so as to transfer an act done under and in faith of a void promise into a consideration for that promise, and thereby charge an innocent man to pay the debt of another. The plaintiff in such case ought to prove the agreement, including the consideration, very clearly. There ought to be no doubt about the extent of the contract, or of the inducement. Here the agreement of Chaffin to pay was, at the time of making, declared explicitly to be founded on the assets in his hands, and nothing else. There was no talk of an appeal, or of Mosby's doing anything else but what he was before bound to do — namely, paying the money to Dalton. It was an agreement to indemnify. It turned out afterwards that Chaffin had then no assets. There was no delay on the part of Mosby, nor other act stipulated for. It rested solely on the assets. How, then, has Mosby been injured or Chaffin benefitted by anything he was, according to the contract, to do? It is true that Chaffin said they understood each other; and if that means that there had been a private agreement between them, that if Mosby would appeal, or join in an appeal, Chaffin would pay all, it might be sufficient. But the inference is very remote and hard, and ought not to be drawn without apparent compulsion between parties situated like these. Nor was it so treated by the counsel in the Court below. In opening the plaintiff's case, the appeal is not stated as the consideration upon which the promise was made, but as an inconvenience which Mosby sustained by acting on the promise previously made. In like manner was viewed the "delay of Mosby in taking steps against the administrator of William Chaffin." This is a very distinct thing from these acts being the consideration stipulated by Mosby upon which Chaffin promised. If a party take my assumpsit without consideration he cannot afterwards (337) recover from me because he trusted to the promise, and will be incommoded if I do not perform it. It is void in law, and the party is bound to know it. If he acted on it, it was upon the faith of my honor, and to that alone he must appeal. The law cannot help him.

Here the parties did in he fact appeal, but no connection is proved between that transaction and the agreement. Nothing is proved respecting it, nor any communication between the parties, after the time of the promise to the praying of the appeal, which was two days afterwards. Indeed, the appeal, as prayed, was necessarily that of Mosby, and as far as appears to us Chaffin made no promise, not even as to the costs, upon that footing. That fact gave the plaintiff no right, and his verdict is wrong for the small sum recovered by him, unless Chaffin's promise was founded upon Mosby's agreement to appeal. Every probability leads us to suppose that Mosby having Chaffin's undertaking to indemnify him, which he (though he ought not) thought good, made himself easy and allowed Chaffin to manage the business in his name to his own liking. If he has suffered loss, it is his own folly or misfortune; for he ought not to have gone on without Chaffin's promise, founded, not upon assets which he had not, but upon that act, to pay him whatever he should be compelled to pay in that suit.

I agree, therefore, with the Judge, below that the plaintiff recovered more than he was in law entitled to.

PER CURIAM. Affirmed.

Cited: Norton v. Edwards, 66 N.C. 369; Leroy v. Jacobosky, 136 N.C. 451.

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