Hooker v. Knab , 26 Wis. 511 ( 1870 )

Cole, J.

It must be conceded that the original agreement, which formed the consideration of the note, was void by the express language of the statute. Sec. 3, ch. 107, R. S. It was a parol contract for the sale of two thousand bushels of wheat, at $1.81 per bushel, to be delivered in the future; no part of the wheat being delivered when the contract was made, nor any part of the purchase money paid. It was therefore a purely void contract. It is unnecessary to quote the-language of the statute, as it is familiar to all lawyers and business men of the state. Can it be held, then, that this contract, which never had any legal validity whatever, but was simply void, was a sufficient consideration for the note sued upon 1 It appears to us not.

This' question arises between the original parties to the note, where the consideration may be inquired into. And what was the consideration of the note ?. It was a mere nullity. For “ a contract declared void by statute, is in all respects a nullity. It cannot for any purpose be considered as ever having had a being or existence.” Dixon, C. J., in Brandeis v. Neustadtl, 13 Wis. 142-149. “ A 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.” Thomas v. Thomas, 2 A. & E. (N. S.) 859. “ The surrender, forbearance or assignment of a claim having no legal validity is not a sufficient consideration for a promise.” Kidder v. Blake, 45 N. H. 530, and authorities there cited. The parol agreement in respect to the sale of the wheat, however binding it might be in honor, did not create any legal responsibility. In Frey v. The City of Fond du Lac, Mr. Justice Paine says : “ It is a general rule that a promise to pay for a past consideration, for which there is not and never has been any legal liability on the part of the party promising, does not make a contract binding in law. It is placed upon the same footing with a promise which does not purport to be for any consideration whatever.” 24 Wis. 204-207.

Within the principle of these authoritiés, the note had no consideration to support it. There never was any obligation enforceable in law to deliver the wheat. See the authorities cited on the brief of the counsel for the defendant, particularly Watkins v. Halstead, 2 Sandf. S. C. 311; 1 Parsons on Cont. (5th ed.) p. 432, note (t).

By the Court. — The judgment of the circuit court is reversed, and a new trial awarded.