Tolhurst v. Powers ( 1891 )

Learned, P. J.

Leaving out all the unimportant facts, the case in the aspect most favorable to plaintiffs stands thus: On the 17th of December one Ball owed the plaintiffs for work $522.15. There was at that time in their possession a machine which had belonged to Ball, which he had sold and delivered to Crane, and which Crane had returned because it did not work. The machine was in plaintiffs’ lawful possession, but they had no legal lien or claim of any kind upon it. Ball, or, if not Ball, then Crane, was entitled to immediate possession. The defendant had paid some money for Ball, and Ball and defendant desired that the machine should go into defendant's possession. He had not, however, at that time, any title to it. Ball and defendant were present at plaintiff’s machine-works in Troy, and wished to have the machine shipped to defendant at New York. Plaintiffs said they wished to know who was to pay the balance above mentioned which Ball owed thorn. Defendant said he would pay it. Thereupon the machine was shipped by plaintiffs to defendant, or rather Crane came for it to plaintiffs’ works, and had it sent by express to defendant. There was no written agreement. Plaintiffs subsequently called upon defendant for the aforesaid balance. He at first promised verbally to pay, but afterwards refused. The question is whether the verbal promise of defendant to pay plaintiffs a debt which Ball owed them, made to induce them to ship to defendant, with Ball’s consent, a machine belonging to Ball, and on which they had no lien, is legally binding on defendant, after plaintiffs have mad'e said shipment. What consideration existed for the promise ? The plaintiffs had no lien on the machine, and could not rightfully have retained possession. If their surrender of possession was an act which they were legally bound to do, then they parted with nothing. It would be a premium on wrong-doing to say that the courts would enforce a promise to pay money, made to induce one to surrender to the rightful owner property to which the possessor had no title and no right of possession. One who has possession, but no right to possession whatever, may possibly delay the rightful owner by refusing to deliver. But to say that such possessor parts with anothing of value when he merely does his duty, and gives up what he has no right to retain, is very inconsistent with sound principle. Suppose Ball had not owed plaintiff, and they had insisted that they would not give up the machine unless defendant promised to pay them $500, and he had so promised, would there have been any consideration for the promise? There was not here the compromise of a disputed claim. Nothing is shown to establish that the plaintiffs had, or that they even claimed to have, a lien on the machine. Possibly they could have compelled Ball to bring an action, as it would not have been lawful for him to enter on plaintiffs’ premises forcibly to get his property. But the voluntary surrender of what one has no right to retain cannot be a good consideration for a promise. The promise parts with nothing. He gives up nothing to which he has or claims a right. This is not a case where the original debtor conveys property to another in consideration of his promise to pay the debt. The defendant made no promise to Ball. Ball conveyed nothing to the defendant. Subsequently, it is true, in the following February, Ball did convey this machine to defendant. But that conveyance was to secure moneys advanced by defendant, and was not in consideration of any promise to pay this debt to plaintiffs. Further, this debt was Ball’s, and defendant’s promise was void under the statute of frauds. We need not discuss this at length. It is enough to refer to Ackley v. Parmenter, 31 Hun, 476, 98 N. Y. 425. The judgment should be affirmed, with costs.

Mayham, J.

Assuming, as we must, that the plaintiffs had a mere naked possession of this dynamo, with no interest in or lien upon it, so that, after a demand by the real owner, their possession would be wrongful, I do not see how its delivery to the defendant, who was entitled to the possession, furnishes any consideration of harm to the plaintiffs, or benefit to the defendant, to support the promise of the latter to pay the debt of Ball to the former. I think, therefore, the judgment should be affirmed.