Tompkins v. Philips , 12 Ga. 52 ( 1852 )

By the Court.

Warner, J.

delivering the opinion.

[1.] The error assigned to .the judgment of the Court below in this case is, the ordering of the money raised by th? sale of Louisa and her three children, to be paid over to Philips’ fi.fas.

The plaintiff in error claims the money under the agreement made between himself and Philips. The Court held that there was no legal consideration for that agreement, and for that reason ordered the money to be paid to Philips’ executions.

Philips’ executions against Foster, the defendant, were of older date than the one controlled by Tompkins ^gainst Foster, and on that account were entitled to priority of payment out of any money which might be raised by levy and sale of the defendant’s property.

Tompkins insisted that Philips should levy his executions on Louisa and her three children, assuring him they were subject to the payment of Foster’s debts, and offered to indemnify him for costs, &c. Philips declined doing so, saying that he knew that the negroes were not subject to the payment of Foster’s debts, but that if he, Tompkins, was fool enough to risk his money and trouble for them, he was welcome to all he could make; that he, Philips would have nothing to do with it; that he would not incur a bill of costs, &c.

The fi.fa. controlled by Tompkins, was one which had been obtained against Foster and himself, as Foster’s security on appeal in favor of Brooks, administrator of Smith. Subsequent to the verbal agreement between Philips and Tompkins, Philips executed a written release and relinquishment of all lien or legal claim, created by his fi.fas. on the negro slave Louisa and her three children then levied on by a fi.fa. of Wilson Brooks, adninistrator of George M. Smith, vs. Charles Foster and Nicholas 'ompkins. This relinquishment was drawn up at the request of both Tompkins and Philips, and signed by the latter, who ren irked at the same time, that he knew' Tompkins could not con Vmn the negroes, but if he could condemn them, he w>as wml ne to do so, and that he would not claim any of the money, it w'ould levy his executions on a negro by the name of Jordat if he got the opportunity. Was there a sufficient legal consideration for this agreement between Tompkins and Philips ? “ Any benefit accruing to him who makes the promise, or any loss, trouMe, or disadvantage undergone by, or charge imposed upon him to whom it is made, is sufficient consideration, in the eye of the law, to sustain an assumpsit.” Smith on Contracts, 87. The consideration upon which an assumpsit shall be founded, must be for the benefit of the defendant, or to the trouble or prejudice of the plaintiff. 1 Comings Dig. 297, letter B — Consideration.

[2.] Damage tdls \e promissee, as well as benefit to thepromissor, is a sufficient consideration to support a promise. Forster vs. Fuller, 6 Mass. Rep. 59. Townsby vs. Sumral, 2 Peters’ Rep. 170. The cc isideralion upon which an assumpsit is founded must be either for the benefit of the defendant, or to the trouble or prejudice of the plaintiff. Powell vs. Brown, 3 John. Rep. 104. These principles wTere recognized by this Court in Austell vs. Rice, 5 Geo. Rep. 476. The levying upon the property with his execution by Tompkins; the prosecuting the claim lor the negroes, which the record shews was interposed byPhilpot, and the employment of counsel, necessarily subjected him to trouble, loss, disadvantage, and charges, which, as we have seen, constitutes a good legal consideration for the promise made by Philips, that if Tompkins would condemn the negroes, that he would not claim the money arising- from the sale thereof. The original parol promise, was consideration for the written relinquishment. There is another legal principle which prohibits Philips from claiming this money, according to the facts apparent on the face of this record.

[3.] By his admissions and representations to Tompkins, he induced him to levy upon, condemn and bring this properly to sale. Admissions (says Professor Greenleaf,) which have been acted on by others, are conclusive against the party making them, in all cases, between him and the person whose conduct he has thus influenced. In such cases, the party is estopped, on grounds of public policy and good faith, from repudiating his own representations. 1 Greenleafs Ev. sec. 207. Now here was not "only an admission, but an express declaration by Philips to Tompkins, that Louisa and her children- were not subject to the payment of Foster’s debts, and that if Tompkins was willing to risk his money, and condemn them, he would not claim the 'money arising from the sale thereof by virtue of his prior lien on Foster’s property.

Tompkins, acting upon this admission and declaration of Philips, did not only risk his money, but his time and trouble, for the condemnation of the property; and when it was condemned and brought to sale, Philips, repudiating his admissions and declarations, comes forward and claims the money — which fair dealing and good faith, in our judgment, forbid him from doing. Let the judgment of the Court below be reversed.