William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) online

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Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 77 of 109)
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ConUing v. King, 10 N. Y. 4-10 ; Dayton v. Trull, 23 Wend. 345.
The same principle applies as between co-sureties. Goodloe v. Clay,
6 B. Monr. 236. In respect to indorsers and sureties, as we have seen,
they may be completely discharged by the laches of the creditor.

§ 3. When not a defense. Unless the creditor's receiving a bill or
note for a debt in some way operates to extinguish that debt, or the lia-
bility of the party setting up that defense, it furnishes no defense. It
is a general rule that a debt is not extinguished by the creditor's accept-
ing an obligation of equal dignity. Bowers v. State, 7 Harr. & J. 32 ;
Hart V. Boiler, 15 S. & R. 162. But the mere taking of a note, bill or
check for a debt does not, in general, operate to discharge or extinguish
the demand for which it was taken, whether of equal dignity or not ;
nor confine the creditor to an action upon such instrument, unless such
was the agreement of the parties. Tobey v. Barber, 5 Johns. 68 ; 2
Am. Leading Cases, 245, and cases cited ; id. 264 ; Aultman v. Jett, 42
Wis. 488 ; Paine v. Yoorhees, 26 id. 522 ; Bates v. RoseTcrams, 37 N.
Y. 409 ; Crane v. McDonald, 45 Barb. 354 ; Marshall v. Marshall, 42
Ala. 149 ; DoeUing v. Loss, 45 Mo. 150 ; Middlesex v. Thomas, 20 N-
J. Eq. 39 ; Stevens v. Anderson, 30 Ind. 391 ; Guion v. Doherty, 43
Miss. 538 ; Dunlajp v. Shanklin, 10 W. Va. 662. And the rule is the
same, whether the debt was pre-existing or contemporaneous with the
receipt of such instrument. lb.

Giving a note or bill for an antecedent debt is not a payment of it,
unless received under an express agreement, or under circumstances
from which an agreement may be fairly implied, to treat it as a pay-
ment ; or unless payment in fact results {May v. Gamble, 14 Fla. 467 ;
Matteson v. Ellsworth, 33 Wis. 488 ; 14 Am Rep. 766 ; Archibald v.
Argall, 53 111. 307) ; or unless the creditor makes it his own by laches
on his part. Gallagher v. Roberts, 2 Wash. (C. C.) 191 ; Denniston v.
Imbrie, 3 id. 396 ; Dougal v. Cowles, 5 Day, 511. An express agree-
ment to receive the note of a third person as payment is not binding
if such agreement was procured by fraudulent concealments and mis-
representations. Poole V. Rice, 9 W, Ya. 73. But if the representa-
tions were a mere expression of an opinion, though fraudulently made,


it will not prevent the note from operating as a payment. Homer v.
Perkins, 124 Mass. 431.

The effect of the creditor's receiving such an instrument is simply to
suspend the creditor's remedy on the original debt until the maturity of
the instrument so received, and to require him then to produce such
instrument, or show that it is not in a situation to be enforced against
the debtor. 2 Am. Lead. Cases, 245, and cases cited ; Eastman v. Por-
ter, 14 Wis. 39 ; Moses v. Trice, 21 Gratt. 556 ; 8 Am. Rep. 609 ; De-
Yampert v. Broion, 28 Ark. 166. And if he was induced to take it by
fraud, or if it is worthless, or void for forgery or usury, he need not
wait for its maturity before suing on the original demand. Miller v.
^Voods, 21 Ohio, 485 ; 8 Am. Rep. 71 ; Rolerts v. Fisher, 43 N. Y.
Ib9; Goodrich v. Tracij, 43 Yt. 314; 5 Am. Rep. 281; Ramsdell v.
Soule, 12 Pick. 126 ; Johnson v. Johnson, 11 Mass. 359.

The taking of a note payable on demand, or of a negotiable instru-
ment for a prospective liability not yet matured, cannot even suspend
the remedy on the original demand. Fearn v. Cochran, 4 C. B. 274 ;
Kinsley v. Buchanan, 5 Watts, 118 ; Bay v. Coddington, 5 Johns. Ch.
54. Nor can the transfer and acceptance of non-negotiable securities
have that effect, in the absence of special agreement. Huse v. 2lcDaniel,
33 Iowa, 406. Such securities do not operate as payment unless paid.
Johnson v. Gilbert, 4 Hill, 178 ; Cardell v. McNeil, 21 N. Y. (7 E.
P. Smith) 336.

The acceptance of a check or draft for a debt merely suspends tem-
porarily the remedy on such debt, and does not, without special agree-
ment, operate as payment until it is itself paid. Tanner v. Bank of
Fox Lake^ 23 How. Pr. 399 ; Genin v. Tompkins, 12 Barb. 265 ; Lovett
V. Cornwell, 6 Wend. 369 ; Heartt v. Rhodes, QQ 111. 351 ; Kermeyer
V. Newby, 14 Kan. 164 ; Puckford v. Maxwell, 6 Term, 52.

Nor does the fact that a negotiable instrument was received by the
holder for a pre-existing debt furnish any reason for the admission of
equities between precedent parties as a defense against him, if he took
it in good faith, before maturity and without notice of equities, and
surrendered his previous security ; because in such a case he will be a
bona fide holder, and protected against equities. Knox v. Clifford, 38
Wis. 651 ; 20 Am. Rep. 28 ; Heath v. Silverthorn, 39 id. 146 ; Bank
of St. Albans v. GiUiland, 23 Wend. 311; Armour v. McMichael,
36 N. J. Law, 92 ; Robinson v. Lair, 31 Iowa, 9 ; Manning v. Mc-
Chire, 36 111.490; Stevenson v. Heyland, 11 Minn. 198; Currier.
Misa, L. R., 10 Exch. 153 ; 12 Eng. R. 592. The acceptor of a bill of
exchange cannot, therefore, defend against a bona fide holder, on the
ground that his acceptance was fraudulently obtained by the payee,
YoL. YL— 71


and by hhn indorsed to tlie 'holder in payment of an antecedent debt,
and without other consideration. Swift v. Ti/son, IG Pet. 1. Vol. 1,
p. Gil.

One M'lio takes the note of a third person before it is due, merely as
collateral security for a pre-existing deljt, giving some new considera-
tion, if it be no more than an extension of time, is also a honajlde holder,
and is protected against prior equities. Depeau v. Waddington, 6 TVhart.
220 ; 2 Am. Lead. Gas. 14G ; Mimn v. McDonald, 10 Watts, 270 ;
Bosanquet v. Dudmmi, 1 Stark. 1 ; Carson v. Hill, 1 McMull. 76 ;
Chicojyee Baiik v. Chajnn, 8 Mete. 40 ; Smith v. Isaacs, 23 La. Ann.
454 ; Lindsay v. Chase, 104 Mass. 253 ; Bonaiid v. Genesi, 42 Ga.
639. Even the neglect of tlie creditor to take the usual measures to
hold the parties to negotiable securities received by him as collateral
security is no defense to the original debtor, unless he has received ac-
tual injury therefrom. McLughan v. Bovard, 4 Watts, 308.

It is no defense to the maker, indorser or surety on a note, who signed
for the accommodation of another, without restricting its use, as against
one who received it in good faith, in payment for a pre-existing debt,
that the person for whose accommodation it was made or indorsed fraud-
ulently diverted it from the purpose for which it was intended {Gro-
cers' BanTc v. Penfield, 59 N. Y. (24 Sick.) 502 ; Qidnn v. Hard, 43
Yt. 375 ; 5 Am. Rep. 284 ; Seneca Co. Bank v. Neass, 3 N. Y. 442 ;
Merchanti Nat. BamJc v. Comstoch, 55 id. 24 ; 14 Am. Rep. 168) ;
and the same is held in Maryland, when such note is transferred as col-
lateral security. Maitland v. Citizens' Nat. Bank, 40 Md. 540 ; 17 Am.
Rep. 620. Nor is it a defense to an ordinary indorser of a bill or note
that the holder received thereon from the principal debtor, when over-
due, a time bill or note ; unless there was an agreement that it should
operate as a payment, or an extension of time in favor of some prior
party. Taylor v. Allen, 36 Barb. 294.

A surety in a bond is not released by the holder's taking notes from
the principal debtor, if there is no express agreement to suspend the
right of action on the bond, or if the creditor clearly expresses his
intention still to hold the surety. Paine v. Voorhees, 26 "Wis. 522.

§ 4. Rights of creditors. It is the right of a creditor to receive
as many securities for his debt as the debtor sees fit to give ; and if
the several securities so taken are in equal degree, there will be no
merger of the earlier in the later ones. Andrews v. Smith, 9 "Wend.
53 ; Millard v. Whitaker, 5 Hill, 408.

This subject has been to a considerable extent anticipated in the pre-
ceding sections ; from which it will appear that if the taking of a bill
or note for a debt, pre-existing or contemporaneous, does not amount


to a payment or satisfaction, the creditor may, upon its non-payment at
maturity, sue on the original debt. Vansteenhurgh v. Hoffman, 15 Barb.
28. And if such instrument was" invalid, or he was induced to take it
by fraud, he may rescind the transaction, and sue on the original de-
mand immediately. If the circumstances under which he took the
instrument make him a bona fide holder for value, he can sue and re-
cover thereon, notwithstanding any equities between prior parties.
This is fully illustrated in the chapter on Bills and Notes, in Vol. 1 of
this work.

§•5. Duties of creditor. A creditor who has received the bill or
note of his debtor for his debt, and upon its non-payment at matu-
rity, sues on the original debt, must, as before stated, produce and can-
eel it on the trial, or show that it is lost or destroyed, or otherwise not
in a condition to be enforced against the debtor. Holmes v. De-
Camp, 1 Johns. 34 ; Angel v. Felton, 8 id. 149 ; Smith v. LooJcwood,
10 id. 366 ; Burdich v. Green, 15 id. 269 ; Miller v. Lumsden, 16 111.
161 ; Mathews v. Dare, 20 Md. 248. If he has transferred such bill
or note, his claim against the original debtor is extinguished, because
the maker is liable thereon to the holder.

As against a non-negotiable note, the maker can generally avail him-
self of all equities in defense against any holder ; but where such in-
struments are by law transferable free from equities arising subsequent
to notice of the transfer, there seems to be no reason why the debtor
should not have the right to demand its production on the trial.

If the negotiable paper received was forged, it is the duty of the
creditor to return it within a reasonable time after the discovery of
that fact, so that the debtor may avail himself of his recoiu-se back to
the person from whom he received it. Jones v. Ryde, 5 Taunt. 488 ;
MarUe v, Hatfield, 2 Johns. 455 ; Thomas v. Todd, 6 Hill, 340.

A creditor who accepts the bill or note of a third party, either as
conditional payment of a debt, or as collateral security thereto, also
accepts and undertakes the duty of making it available for the purpose
for which it was given him, and he will not be permitted to enforce
the original right of action against his debtor, while retaining and mis-
applying the means of obtaining satisfaction from another. Kear-
slake v. Morgan, 5 Term, 513 ; Chamherlyn v. Delarive, 2 Wils.
353 ; Smith v. Wilson, Andrews, 187 ; 2 Am. Lead. Cas. 183, 196,

He must, therefore, take the usual and proper steps to collect the
security in his hands, and to charge all the parties who would be liable
over to his debtor, otherwise the latter will be discharged. Hichling
V. Hardey, 7 Taunt. 312; Mussen v. Price, 4 East, 147; Copper v.


Powell, Anth. X. P. 68; Feacockv. Pursell, 14 C. B. (N. S.) 728;
Shipman v. Cook, 1 C. E. Green (N. J.), 251 ; Mehlherg v. Tisher, 24
Wis. 007. As to what proceedings are necessary for that purpose, it
is sufficient here to refer generally to the chapter on Bills and Notes,
Vol. 1, pp. 618, etc.

A creditor who surrenders a draft received by him on account of a
debt, upon delivery to him of a check for the amount, is under no ob-
ligation to use more than ordinary diligence to charge the maker, in
order to retain his remedy against the parties to the draft, if the check
is dishonored. Johnson v. Bank of North America, 5 Ilol)t. 554.
His neglect to present the check the same day is not sufficient to dis-
charge the drawers of the draft. Smith v. Millet', G Robt, 157 ; 6 Abb.
(N. S.) 234.

If a debtor transfers a non-negotiable note by indorsement inpay-
ment of his own debt, it is not necessary to give the debtor notice of
its non-payment by the maker, in order to retain his remedy against
him. Plimley v. Westley, 2 Bing. N. C. 249 ; Hill v. Lewis, 1 Salk.
132. "Whether considered as joint maker, or as indorser, he is liable
on the original debt in such a case. Tyler v. Stevens, 11 Barb. 485 ;
Torry v. Hadley, 27 id. 192. A creditor receiving non-negotiable
certificates of deposit, without special agreement to receive them as
payment, is not bound to sue the bankers, nor to use any more than
ordinary diligence to charge them or notify his debtor. Huse 7. Mc-
Daniel, 33 Iowa, 406.

§ 6. Burden of proof. If a debtor sets up as a defense to an action
by his creditor on the original debt, that the latter has received from
him a note or bill in payment thereof, tlie burden of proof is on him
to show that it was received in payment ; and he must show either an
agreement to that effect, or that by the laches of the creditor a loss has
been incurred. Darnall v. Morehouse, 36 How. Pr. 511 ; Crane v.
McDonald, ^^ Barb. 354; Gibson v. Tohy, 53 id. 191; Haines v.
Pearce, 41 Md. 221 ; Bradford v. Fox, 38 N. Y. 289 ; Broion v.
Olmsted, 50 Cal. 162.

And if the defense be, that the creditor received the debtor's own
note as payment, the latter must not only show that it was so received,
but that it has been paid ; but the creditor cannot recover in such a
case without producing and canceling the note, or showing its loss.
Elwood V. Diefendorf, 5 Barb. 398.

The presumption that, when a vendor takes from his vendee, at the
time of the sale, the note or bill of a third person, he takes it as pay-
ment, if indulged, throws upon the creditor the burden of proof that
it was not so received. WhithecJi \. Van Ness, W ^o\m's>. ^^^. If a


bill drawn by the debtor is shown to have been taken by the creditor
as payment, on condition that it shall be in full when paid, the burden
of proof is upon the creditor to show that the bill is in his hands, and
still unpaid, and to prove or excuse presentment and notice. Dayton
V. Trull, 23 Wend. 345 ; 2 Am. Lead. Gas. 167, and notes 190, 196.

If, in an action upon the instrument transferred, it is shown to have
been so transferred contrary to the agreement with an accommodation
party, the holder must show that he paid value therefor. 2 Parsons
on Bills, 438 ; Millis v. Barber, 1 M. & W. 425 ; Perrin v. Nmjes, 39
Me. 384 ; Grey v. Bank of Kenttichyy 2 Litt. 378 ; Fitch v. Jones,
5 E. & B. 238 ; 32 Eng. L. & Eq. 134 ; supra, Vol. 1, p. 611.

If the defendant seeks to impeach the plaintiff's title, by alleging
fraud or breach of duty on the part of the payee, and notice of equities
to the holder, it is for him to establish those facts. Carpenter v. Lon-
gan, 16 Wall. 271 ; Maitland v. Citizens' Bank, 40 Md. 540 ; 17 Am.
Rep. 620.

In a suit by one to whom notes were pledged as collateral security,
the burden is on him to show for what debts they were pledged. Id.

§ 7. Effect of taking note by creditor. The effect of taking a
note or bill, in suspending the remedy upon the original debt, has
already been noticed. The receipt of a note for the amount of a simple
contract debt has in many cases been held to \iQ prima facie payment
{Hutchins V. Olcutt, 4 Yt. 555 ; Beed v. Upton, 10 Pick. 522 ; Jones
V. Kennedy, 11 id. 125 ; Wood v. Bodwell, 12 id. 268 ; PlanMnhorn
V. Cave, 2 Yeates, 370 ; Paine v. Dwinel, 53 Me. 52), especially if
such note is with surety or guaranty, or is otherwise secured. Curtis
V. Ligham, 2 Yt. 287 ; Torrey v. Baxter, 13 id. 452 ; Bowe v. Collier,
25 Tex. 252. But this presumption may be rebutted. Pa/rham S. M.
Co. V. Brock, 113 Mass. 194; Wemet v. Missisquoi L. Co., 46 Yt.
458 ; Kimball v. The Anna Kimball, 2 Chff. 4 ; Wa7rl v. Bourne, 56
Me. 161 ; Dorman v. Wilson, 39 N. J. Law (10 Yr.) 474.

But, as we have seen, an express agreement, or circumstances show-
ing that to be the intention of the parties, must, in general, be shown,
and this presumption must ordinarily, if not always, be hmited to a
conditional payment, merely suspending the creditor's remedy.

If a judgment creditor takes the note of his debtor for the amount
of his execution, and gives a discharge, that \& prima facie evidence of
payment. Day v. Stickney, 14 Allen, 255. If the payee of a note
surrenders it to the maker, and receives in its stead the note of a
Btranger to the original debt, without indorsement, that extinguishes
the original demand. Dennis v. Williams, 40 Ala. 633.


But the receipt by a lessor, of notes for the installments of rents stip-
nlated in his lease, and payable at the times when those installments
became due, is not payment, even though the notes are negotiable, so
long as they are not negotiated. Sutliff v. Atwood, 15 Ohio St.





Section 1. In general. In order to give validity to a contract, as
tetween the parties, it is indispensably necessary that it should be pred-
icated upon a sufficient consideration, or it is a mere nudum jpactum^
and not enforceable either at law or in equity ; and the same rule pre-
vails, when the consideration, upon which the promise rests, fails, either
in whole or in part. Cahot v. Haslcins, 3 Pick, 83 ; Logan v. Matthews,
6 Penn. St. 417 ; Gould v. Artnstrong, 2 Hall (N. Y.), 266 ; Couturier
V. Hastie, 5 H. L. Cas. 673 ; Gough v. Findon, 7 Exch. 48. Thus,
if a person subscribes a certain sum for a specific purpose, upon condi-
tion that certain things shall be done, unless the condition is performed
the subscription cannot be enforced, because the consideration upon
which it was made has failed. Brewers' Fire Ins. Co. v. Burger, 10
Hun (N. Y.), 56. Neither can the collection of a note be enforced by
the original payee, when the consideration upon which it was given
fails. Thus, when a note is given in settlement of a supposed balance
due from the maker to the payee, if it turns out that the balance was
produced by reason of a mistake in computation, and that there was in
fact nothing due from the maker of the note to the payee, there can be
no recovery thereon, because the consideration upon which it was given
has totally failed. Mercer y. Clark, 3 Bibb (liy.), 224. If there is an
aj^parent consideration, the rule is not changed, if it is in fact invalid, or
a nullity. Thus, where an executor, upon notes of his testator for
payment, which were genuine, and upon their face purported to be for
a good consideration, paid a portion of the amount and promised to pay
the balance ; but in fact there was no consideration for the notes, but
they were given as a mark of respect on the. part of the testator for the
payee, it was held that they could not be enforced against the estate,
because the part payment and promise to pay by the executor gave
them no more validity than they possessed before, because the promise


had no valid consideration to support it. Gough v, Findon^ 7 Exch.
48. Tiiis ])riuciple is well illustrated by Potliier, in his work upon
01)lii;-atic)iis, \Ydvt 1, chap. 1, art. 3, § G. He says : " If, upon the false
supposition that I owe you a £1,000, left you by the will of my fatlier,
which has been revoked by a codicil, whereof I am not apprised, I en-
gage to give you a certain estate in discharge of that legacy, the con-
tract is null, and the falseness of the cause being discovered, you are not
only without any right of action to compel me to deliver the estate, but
even if I had delivered it, I am entitled to reclaim it." As to the last
proposition, see Cripj}s v. Jieade, 6 T. R. 60(5 ; Rohmson v. Anderson,
Peake, 94 ; Gingell v. Glasscock, 8 Bing. 86 ; Young v. Cole, 3 Bing,
N. C. Y24.

In order to constitute a valid, legal consideration, it is not necessary
that each party to the contract should derive an equal benefit or advan-
tage therefrom {Handle v. Harris, 6 Yerg. [Tenn.] 508) ; it is enough
if any thing is performed, or agreed to be performed, which the party
is under no legal obligation to perform, or if any thing is given or
done as the consideration or inducement for the promise, whereby the
promisor or person making the promise has made or secin-ed for him-
self some advantage or benefit, however slight, or whereby the promisee
or person to whom the promise is made has sustained some loss, or been
put to some trouble, or has suffered some injury or inconvenience.
The law does not measure advantages^ but if there is no fraud and the
parties are legally competent to contract, if there is a7iy consideration
for the contract, it will be upheld although the benefit upon the one
side is altogether out of proportion with the advantages on the other
{Brooks V. Haigh, 10 Ad. & El. 320 ; Wilkinson v. Oliveria, 1 Bing.
N. C. 490 ; Thomas v. Thomas, 2 Gale & Da v. 226 ; Harlan v. Har-
lan, 20 Penn. St. 303) ; or, even though the other party derives no ad-
vantage or benefit whatever therefrom. As if A should promise B
that if he would perform certain labor for C, he would pay him there-
for, A would be legally bound to pay B, although C alone was bene-
fited by the labor. Smith v. Watson, 14 Yt. 332 ; Williams v.
Brickdl, 37 Miss. 682 ; White v. Mastin, 38 Ala. 147. Thus, it will
be seen that the question as to the sufiiciency of a consideration to up-
hold a contract does not depend upon the relative advantages derived
by the parties therefrom, but depends wholly upon the question
whether the party seeking to enforce it has done any act in considera-
tion thereof, for the other party, that he was not legally bound to do,
or has parted with any property or interest that he was not legally or
morally bound to part with. Thus, a promise to pay the debt of an-
other, after it is created, is not enforceable, unless the creditor has


thereby been induced to forbear the bringing of an action, or has given
up some security {Gilman v. Kihler, 5 Humph. [Tenn.] 19 ; Cutler
V. Everett, 33 ■ Me. 201 ; Comstock v. Br.eed, 12 CaL 286 ; Pfeiffer v.
Kingsland, 25 Mo. %Q\ Beall \. Hidyeway, 18 Ala. 117); and the
liability is the same, whether the agreement is in writing or by parol.
In cdl cases where the consideration is past, a promise is not enforce-
able as against a third person, unless there is some new consideration
upon M-liich to predicate it {Mosbi/Y. Leeds, 3 Call [Va.], 439 ; Cooh
y.- Bradley, 7 Conn. 57; Clarh v. Small, 6 Yerg. [Tenn.] 418; Peo-
jple V. Shall, 9 Cow. 778) ; and the same rule applies to the guaranty
of a note, as to any other contract. Tenney v. Prince, 7 Pick.
243 ; Aldridge v. Turner, 1 Gill & J. (Md.) 427. See Yol. 1, tit!
Bills and Notes. A promise made in a consideration that the other
party will do some act that he is bound to do irrespective of the
promise, is without consideration, as a promise ma-de to induce one to
comply with an existing valid contract with a stranger {Johnson v.
Sellers, 33 Ala. 265) ; or to pay a reward to an officer for the aj^pre-
hension of a criminal, whom he is legally bound to apprehend {Smith
V. Whilden, 10 Penn. St. 39) ; or a promise to pay a sheriff extra fees
for serving a process {Dew v. Parsons, 2 B. & Aid. 562) ; or a witness
for loss of time {Collins v. Godefroy, 1 B. & Ad. 950) ; or a servant,
for extra services that it is his duty to perform under the contract
{Harris v. Carter, 3 E. & B. 559 ; Stilk v. Myrick, 2 Camp. 317 ;
Siveany v. Hunter, 1 Murph. 1 81) ; or by a creditor to his debtor to
remit a part of • a debt {Jenness y. Lane, 26 Me. 475 ; Fairchildw
Warren, 21 How. [N. Y.] 187 ; Watts v. Frenche, 19 N. J. Eq. [4
Green] 407) ; and generally, a promise in consideration that a person
will perform a plain legal duty is without consideration. Lemaster
V. Burckhart, 2 Bibb, 27 ; Molly neaux v. Collier, 13 Ga. 406 ;
Goodale v. Holridge, 2 Johns. 193 ; Johnson v. Sellers, 33 Ala. 265 ;
JSforris v. Slaughter, 3 Iowa, 116.

A voluntary promise to do that which the promisor is under no
legal obligation to perform is without consideration, and therefore not
enforceable. Thus, a voluntary promise to pi'ocure insm^ance upon certain
property for another is not binding, and if it is not performed, and the
property is destroyed, an action will not lie against the promisor for
the damage, because by his promise, the promisor was under no more
legal obligation to perform than he was before it was made {Thorn v.
Peas, 4 Johns. 84) ; and generally, where the promise is gratuitous, it
is not enforceable, however just it might be that it should be performed.
Littlejohn v. Patillo, 2 Hawks (N. C), 302 ; Washington, etc., Bank
V, Farmers' Bank, 4 Johns. Ch. 62. If the promise is gratuitous, it

Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 77 of 109)