Walstrom v. Hopkins , 103 Pa. 118 ( 1883 )

Mr. Justice Gordon

delivered the opinion of the court,

We are not disposed to controvert the doctrine insisted on by the counsel for the defendant, which, from the citations made, may be stated as follows : when a creditor is fully informed of an arrangement between partners by which the outgoing member of the firm is tq be indemnified against the debts of the firm, and he agrees to consider the remaining partners as his exclusive debtors, he may thereby lose all right of claim against the retiring partner. But when all this is admitted it does not reach the defendant’s case. For when we come to consider how the creditor “ may ” thus lose his right, we learn that it can result only from some advantage gained by him, or from some prejudice suffered by the retiring partner. In other words, taking the authorities cited by the defence, and we are brought back, through the somewhat ambiguous, language that is made use of, to the well-known and well-established doctrine that a contract, in order to render it effective, must be founded upon a.consideration of some'kind, otherwise it is mere nudum pactum. Shorb’s Ex’rs v. Shultz, 7 Wr. 208.

. But in the affidavit of defence under discussion, there is no allegation of any consideration,- however remote, on which to base the ..alleged release. “Walstrom and. Stevens said they were satisfied with Bowker as a debtor:;.that they had often done work for him. That they would release your deponent and look to him for the debt, which he was, and now is, able to pay.” - This, is the sum and substance of the agreement. But here is, at best, but a promise to release on request of the defendant without consideration expressed or implied, nor does it appear that by reason of such promise the affiant has suffered any prejudice whatever. According to his own oath, Bowker is still solvent and responsible over to him. He therefore loses nothing by delay; he has but to pay the partnership debt and be repaid by his partner. Under these circumstances, were we to approve of the judgment of the court below, we must adopt the doctrine that a consideration purely moral in its character, an empty promise, without more, is sufficient to support a legal contract'. - Such certainly has never heretofore been the law, and we are not disposed, to be the first to attempt to make it so by the adoption of a principle,.the .utility of which would be more than doubtful.

It is now ordered that the record in this case he remitted to the court below, in order that judgment may be entered by that court against the defendant as to it may seem just and right, unless other legal or equitable cause be shown why such judgment should not be so entered.