Lansing v. M'Killip , 3 Cai. Cas. 286 ( 1805 )

Spencer, J.

If the averment of a consideration on anote like the one in this case, was necessary, then the plaintiff by averring- a consideration which did not exist, has failed in his proof j for if two considerations be alleged, as the foundation of a promise, both must be proved. Cro. Jac. 503. Esp. Dig. 133, 9. If, however, the admission of value by this paper, is of itself sufficient, then the averment of a consideration would be surplusage, and might have been struck out on motion, and therefore cannot vitiate.

That the present is not a promissory note within the statute will not be disputed; it is therefore a promise which can only be enforced on the ground of a consideration; and though value is admitted to be received, it does not supersede the necessity of averring the consideration, that the court may see that it is of that kind and nature to sustain the promise. Prior to the statute of 3d. and 4th. Ann. ch. 9. no action could be maintained expressly on a note, even for the payment of money, without declaring on it as a special agreement, and setting forth the consideration. The case of Carlos v. Fancourt, 5 D. & E. 482. contains the whole law on this subject; and there the court unanimously held, that in declarations on notes not within the statute, they were to be regarded as special agreements, and the consideration was necessary to be set out. In my opinion, the defendant is entitled to a new trial.

Thompson, J.

It is not pretended that the instrument in writing, which was given in evidence, is a note within the statute. And if not, I apprehend, the terms for va° lue received, contained in it, will not, of themselves, imply a consideration, but that a consideration must be averred and proved. It is a general rule, that when a special agreement is the foundation of the action, and tha" agreement stated in the declaration, the contract must be proved as alleged. The plaintiff having averred two considerations, his proof ought to have squared with it. In the case of King, v. Robinson, Cro. Eliz. 79, the court went much farther, and said, that if the promise alleged, be proved, yet if it appear to have been made on a different consideration than the one stated in the declaration, it will not support the action.

Where all the considerations alleged are good, all must be proved, for the promise shall be deemed to be founded on all these considerations. Cro. Eliz. 759. Esp. Dig. 139. I am therefore of opinion, that the proof was defective, and that the plaintiff ought to have been nonsuited on the trial. The verdict must of course be set aside.

Kent, C. J.

This being an action of assumpsit upon a special agreement, it was necessary to state a consideration, and the plaintiff has accordingly stated, that the consideration for the defendant’s promise, was a horse, and divers goods and'chattels, sold to him by the plaintiff.

If a plaintiff allege several good considerations, they xnust all be proved, for the promise shall be deemed to be founded on both considerations taken together. The promise to pay, in the present case, boards to the value of $40, was founded, not singly upon the sale of the horse, (and which we must presume was not estimated at that value,) but upon the sale of divers goods and chattels, as distinct articles from the horse, and which, when added to the value of the horse, amounted to the full consideration of $40. This rule appears to have been long ago settled, and repeatedly recognized. In Tisdale’s case, Cro. Eliz. 758, the court of C. B. held, that where a consideration consisted of two or three parts, and everyone of them was valuable, the plaintiff was bound, of necessity, to show the perfoi'mahce of every part thereof. And in the Case of Coulston v. Carr, Cro. Eliz. 847, the K. B. agreed, that if two considerations be alleged, and one of them be found false by the jury, the action fails. So again in the case of Leneret v. Rivet, Cro. Jac. 503, the K. B. ruled, in arrest of judgment, that if the plaintiif declare on two considerations, he must make a good and sufficient averment of the performance of both. The only exception to this rule is, where both considerations are not good, but one of them insufficient or frivolous, Cro. Eliz. 149, 848. But that distinction can have no application to the present case, as the sale of the horse, and of divers goods and chattels, are considerations equally valid. The verdict, therefore, must be set aside for misdirection of the judge, with costs to abide the event.

Tompkins, J. concurred.

Livingston, J.

This action being brought on a note by which the defendant acknowledges his having received value for the promise he makes, it was not, in my opinion, necessary to prove any consideration, nor should the defendant have been permitted to shew that it was incorrectly set forth, unless he were able to impeach it on the ground . of fraud, turpitude, or illegality. It is superfluous, as well as dangerous, to require proof of the consideration of an undertaking in writing, when a valuable one is acknowledged, under the signature of the party himself. It is ' asking what rarely canbe complied with. How seldom is it that the whole consideration appears on the face of a contract; or that even a subscribing ■ witness knows any thing of it; or if he did, how easily might it escape the memory, or such proof be lost,by death, or other accident? So long then, as it is permitted to set up any unlawful consideration, it is all that can reasonably be asked, and no one can complain that his own acknowledgment is regarded as evidence, at least, prima facie, of one that is fair and valuable. The motion to nonsuit, was therefore properly overruled by the chief j ustice; for here was not only a consideration acknowledged under the defendant’s hand, but his.receipt of a horse actually proved. Under these circumstances, it would be doing great injustice to listen to t¡1(J present application, merely because an additional con» sideration alleged in the declaration, which may be regard-ecl as surplusage, and the want of which constituted no defence, could not be proved, or was disproved. No case has yet gone this length, and I should require a series of decisions-to satisfy me of the propriety or necessity of so much strictness. The case of Bristow v. Wright, ^* is very different from the present. There the demise proved, varied from the one stated in the declaration. That is, the contract itself and not merely its consideration, was erro-neousjy Set forth. The case of Leneret v. Rivet,^† cited from Crake., settles nothing more than that if two good considerations are alleged as conditions, precedent to the defendant’s liability, performance of both must be averred, which is too reasonable to have wanted the support of any authority. In King v. Robinson,^‡ it was proved that the defendant assumed to do what was alleged, and something more. This too, presents the case of a variance between the contract laid and the one proved, and not only between the motives to it as alleged and proved. The note of this case in Espi-nasseÁ is incorrect. I know not of a single decision, ren- . ° dering it necessary, on a contract of this nature, to prove a consideration. We are not now examining whether a nude pact, evidenced by writing, has ever been held to be bad,; but whether, which is a very different question, a promise in writing, acknowledging the receipt of value, shall not, prima facie, be sufficient to support an action without proof of its actual consideration. I know it to be a general and wholesome principle, that contracts must be made on some consideration, and that ex nudo pacto non oritur actio; but the question.still recurs, who is to prove, in a case of this kind, the nakedness of the contract, or its want of consideration ? The same law, which requires this quid pro quo in a contract, does not demand an absolute equivalent, but is satisfied in many cases, with the most trifling-ground that can be imagined. Why not then be content in point of evidence, with a declaration under the hand of ihe party, that he has received a valuable one, without indulging the useless curiosity of prying further into the transaction ? Why so very careful of a defendant’s rights as not to suppose him capable of judging for himself, what was an adequate value for his promise? Would it not be more just, and better promote the ends of justice, that one, who had signed an instrument of this kind, should, without further proof, be compelled to perform it, unless he could impeach the validity on other grounds? It may be said that whoever asks the interposition of a court, must show a right to recover, founded on a valid contract. This is not denied, but does not settle the way in which this proof is to be made, whether the defendant’s acknowledgment of value received shall be regarded as sufficient, or what other evidence shall be required. Of specialties, the considerations we know are not inquirable into, in actions founded on them. And yet the reason assigned by ^* Powell, for excluding this investigation, applies to all bargains in writing. In a specialty says he, “there is a sufficient “ consideration apparent, namely, the deliberate will of the “ party who made the deed.” Does the mere absence of a seal, require us to believe that this deliberate will does not exist in other written contracts ? The truth is, that little or no deliberation intervenes between signing and delivering a deed. They generally take place, as near as two distinct things can, in the same instant. This deliberation then being formed, antecedently to a delivery and even signature of a deed, ought, on the ground of reason alone, to be evidence of a consideration, as much in the one case as in the other. But without disturbing any of the distinctions, which for ages have existed between these contracts, no adjudged case can be found repugnantto my conclusion. That no actions were maintainable on promissox-y notes at common law, where, however, they were regarded as evidence of debt, on counts for money had and received against the maker, is admitted. This establishes what is not controverted, that notes like these must be declared on as special contracts, and their consideration set forth; but we are still at liberty to settle what shall amount to proof °f them. In the case of Carlos v. Fancourt,^* I will only say, that nothing like the present question occurred. 1 he plaintiff had declared on a note of hand, payable on a certain contingency, as on a note within the statute of Anne, an¿ ⅛ was not so, was the single point determined. No latitude of expression, therefore, in which the judges may have indulged bn points not before them, could have the effect of settling the law, even in England. Unfettered, then, by any decision, as to what shall be received as evidence of the consideration, of notes of this description, I have little hesitation in saying, that it ought never to be necessary to prove the consideration of a contract, although stated in the declaration, where a party has acknowledged in writing- that it was made for value, in any other way than by a production and proof of the instrument itself; and that the defendant ought not to be allowed to shew that it was made on any other, unless it be of a nature to destroy, or in any manner affect its validity. This is no more than is done in actions of trover, in which, although a loss and finding be alleged in a declaration, proof of neither is required; where then the extravagance of alleging any legal consideration to comply with the usual form of declaring, and letting it be inferred from the production of a note which admits on its face a valuable one ? Good sense would suggest the propriety of going further, and saying that such a-note might be declared on as a specialty, without alleging any consideration, only leaving to the defendant the same right of investigating its legality, or failure. Such an innovation, however, in the form of declaring, should not be introduced without much deliberation on the consequences it might produce. The plaintiff is, in my opinion, entitled to the Postea.

* Doug. 640.

† Cro. Jac. 503.

‡ Cro. Eliz. 79. § Esp. N. P. 139.

* On Cont. 333.

* 5 D. & E.482.