Alexander v. . Smith , 15 N.C. 364 ( 1833 )

Rueein, Chief-Justice.

The case has beeen argued for the plaintiff upon the ground, that as the record states a loan to Elms, and the note was merely delivered without endorsement to Smith, the transaction was not a sale of the note, but either gave him a lien on it, or at most an authority to receive the money ; which as to all above the loan and interest, was money had and received to the use of Elms or Kimble. The position contended for is rendered immaterial by the instructions given by the Judge. He stated to the jury that it made no difference whether there was a sale or not, or whether it was conditional or absolute. This instruction was given upon the idea that as the sum paid or advanced by Smith, was only §600, there was no consideration extending to the excess of the bond above that sum. In this, the opinion of the court is, there was error. As far as the validity of a contract depends upon a consideration, one of any value, agreed upon by the jmrties, is sufficient. It need not be adequate or equal in value. If á bond for a larger sum be really sold for a smaller, the con tract is not void as to any part of the sum mentioned in thebond. Whether this was a sale or only a pledge, ought to have been left to the jury, if Elms had been suing Smith for the surplus; and so also, if Kimble had been prosecuting an action for it.

In reference to tbe right of Kimble to do so, the judge further instructed the jury, that he might, if Smith expressly agreed that he should stand in the shoes of Elms. Such an action could be sustained by an express promise only; for the claim of Elms was not negotiable, and the assignment to Kimble gave him only an equitable right. That was sufficient as a consideration to support a promise by Smith, to deliver the bond, or pay tbe money to Kimble. But Kimble must bring himself within the terms of the promise as made. In this respect his rights may be very distinguishable from those of Elms. The latter may claim upon grounds independent of the particular agreement; the former cannot. That agreement, as stated in the case, was that Kimble should stand in the shoes of Elms, and if he paid the ,§600 at the day agreed on,' Smith would deliver the note to him ; if not, it should he the absolute property of Smitlu Under this agreement Kimble could not claim the note or money, at law, unless he performed the acts stipulated oh his part. His sickness and absence from home did not dispense with the payment of the money within the time. Whether Smith could justly insist on such terms, or whether they would have been obligatory on Elms, at law, or are so on Kimble in another forum, is not the question. Kimble is obliged to abide by them at law ; because they constitute an essential part of the promise to him, and without or beyond the promise, he has no legal right. As Kimble could not maintain an action for the money as a debt, it is not subject to the attachment of the plaintiff; and there must be a new trial. This is the less to be regretted as the case is very imperfectly stated, and upon another trial it may be better understood, whether Elms was to pay the money, if Gibson failed, and what was meant by Kimble’s standing in his shoes, with or without repeating the terms of the original contract.

The* sickness and consequent absence of a party, is no excuse for non-perform-anee of his contract.

Per Curiam. — Judgment reversed.