Kidder v. Blake , 45 N.H. 530 ( 1864 )

Bartlett, J.

If the sale of the stock of goods was the consideration for the defendant’s note, the plaintiffs cannot recover upon it, for that stock included intoxicating liquors, which neither Blake nor Wilkins had any license to sell. Coburn v. Odell, 30 N. H. 540. And if the surrender of the notes of Blake & Wilkins be regarded as part of the consideration, the case is not altered, for the illegal sale of the liquors would still form part of the consideration. Waite v. Jones, 1 Bing. N. C. 656; Story Cont, sec. 459. Nor do we think the plaintiffs could recover in this action, if the surrender of the Blake & Wilkins notes could be regarded as the sole consideration for the note in suit. The original notes of Blake and Caldwell, as between the parties to them, had no legal validity or value, Fuller v. Bean, 30 N. H. 186, Bliss v. Brainard, 41 N. H. 261, Perkins v. Cummings, 2 Gray, 258, Gray v. Hook, 4 Comst. 449, (and see Viser v. Bertrand, 14 Ark. 267, 15 U. S. D. 19, sec. 90,) and would have been equally valueless in the hands of an indorsee with notice. Chitty on Bills, *95. It would seem somewhat strange if the surrender of such notes by one, in whose hands they were void, to the maker or another, in whose hands they would be equally invalid,could furnish a sufficient consideration for a note by either of the latter to the former; and if such were the law, it would afford a ready cover for evasions of the statute, for, if the surrender of the notes under such circumstances were a sufficient consideration, the discharge of the claims, for which they were given, would seem equally good. It is not a case of the surrender of a doubtful claim, for the invalidity of the notes was undoubted. The surrender of such notes to the maker would not be a sufficient consideration for a new note between the parties. Cutler v. Welsh, 43 N. H. 497; Chitty on Bills, * 89. "Consideration means something, which is of some value in the eye of the law, moving from the plaintiff. . It may be some benefit to the defendant or some detriment to the plaintiff.” Broom Leg. Max. *586, Thomas v. Thomas, 2 A & E. (N. S.) 859. Here the original notes having no legal value, their surrender could be no detriment to the plaintiffs and no benefit to the makers or to Blake & Wilkins. Wade v. Simeon, 2 C. B. 548. Such notes gave no color of title and constituted no cloud upon the title to any property, and the mere fact, that, under certain circumstances, they might avail an innocent holder, cannot give them a legal value in the hands of either of the parties, and without inquiring as to the correctness of the decision in Sanborn v. French, 22 N. H. 246, we think that the trouble of the surrender cannot, in a case like this, be held a sufficient consideration for the notes given by Blake & Wilkins, for if either of these latter propositions were true, there would be a sufficient consideration for the renewal of the notes between the original parties. The surrender, forbearance or assignment of a claim having no legal validity is not a sufficient consideration for a promise. Haynes v. Thom, 28 N. H. 386; Lang v. Johnson, 24 N. H. 309; Dunbar v. Marden, 13 N. H. 311; Bank v. Colcord, 15 N. H. 124; Sherman v. Barnard, 19 Barb. 291; Higgins v. Strong 4 Blackf. 182; Chit. Cont. (10th Am. Ed.) *33, *36, *41, and n.; 1 Parsons’ Cont. *363, 367; Story Cont. secs. 436, 442,443; Farnham v. O'Brien, 9 Shepl. 475; Cabot v. Haskins, 3 Pick. 93; White v. Bluett, 24 L. & Eq. 434.

Upon these principles, the notes of Blake & Wilkins had no legal value, and their surrender, under the circumstances stated- in the case, would be no sufficient consideration for the note in suit, which would therefore be without consideration, if it were assumed to be free from any question because of its more direct connection with the illegal sale.

The promise of Clarke to pay the note, if the plaintiffs would release their attachment, is not declared on, and, if it were, could not avail the plaintiffs, as the abandonment of legal proceedings commenced where there is palpably no cause of action, is not a good consideration for a promise. Wade v. Simeon, 2 C. B. 548; Tooley v. Windham, Cro. Eliz. 206; Loyd v. Lee, 1 Strange, 94; Haynes v. Thom, 28 N. H. 386.

The defendants are not estopped to contest the validity of their note in this action, for, if the estoppel of Clarke would be sufficient, the declaration being on a joint promise, yet there is no estoppel. In law the release of the attachment was no detriment to the plaintiffs ; they were not induced to take the note by Clarke’s promise, which was not the consideration of the note or any representation as to the consideration, and the plaintiffs knowing all the facts were in no way misled as to the validity of the note. Odlin v. Gove, 41 N. H. 473; Drew v. Kimball, 43 N. H. 285; 3 C. & H. Phil. Ev. 367. The original validity of the note had nothing to do with the release of the attachment. Kidder chose to make the release, relying on Clarke’s promise, which had no legal validity, and the doctrine of estoppel does not apply any more than it would in an action brought upon the promise itself. Batchelder v. Sanborn, 24 N. H. 480. There must be

Judgment»on the verdict.