Tillinghast v. Banks

By the Court. Starnes, J., delivering the opinion. [1.] This record does not show that there was any privity between the defendant in error, and the parties to the business in which Butt & Banks and Oliver P. Tillinghast were engaged. It does not show that he had any pecuniary interest, whatever, in this co-partnership, (though a near relation to the partners,) nor that he.conspired with them, to deceive Tilling-hast in any way. Under these circumstances, we do not see how it can be a fraud upon the latter, for Banks now to demand payment of the móney which he has loaned to him, even if it be true, that Tillinghast was not a partner in this concern, and was not, on that account, liable for one-third of the loss on the cotton which had been shipped to Nourse, Brooks & Co., though believing himself to be so ; and even if John Banks knew this, and yet loaned to him the money, upon condition that he would pay one-third of said loss. Let these facts be admitted, and still it remains true, that the defendant in error has parted with his money to Tillinghast, for no other valuable consideration or advantage, than the due bill which was given him for it, so far as we can judge from the record; and it is scarcely a fraud to demand nothing more than payment of this due bill. Occupying the relation which he did to these young men, if [652] he had improperly prevailed on Tillinghast, knowing that he was not hable for any part of the loss, to pay one-third of the same, and to give his due bill, for the means of paying it, this might be deemed morally wrong; but in the absence of pecuniary advantage to defendant in error, could not, certainly, in a Court of Law, constitute fraud, such as to vitiate the contract* [2.] If, however, to determine the liability of the plaintiff in error, Oliver P. Tillinghast, upon this due bill, it became necessary to consider his relations to this partnership transaction, and his liability to respond for a portion of what was lost on this cotton, we think there are facts in the record, which show a sufficient consideration moving to him, for the promise which he gave, to pay one-third of the debt. 1. It may be a question, from the evidence, though he was not a partner, whether he did not, as the active agent of that concern, know, or have reason to believe, that Nourse & Brooks had not agreed to receive the cotton on joint account, and did not conceal his knowledge from his principals, and misrepresent the facts to them. If he did so, interested as he was in the profits, and taking the chances of gain by the speculation, he incurred liability on account of the loss, and this would have been a consideration moving to him, for the promise he gave, to pay one-third thereof. 2. He was interested in the profits, and as a consequence, in the credit of the concern; and being thus interested, he prevailed on Butt & Banks not to allow the bill drawn by Nourse & Brooks to be dishonored, and told them that “all would be right”. When thus, his whole conduct in the matter is considered, his representations, (even supposing them to have been made in good faith,) and his chance of enhanced gain from the profits, by the credit of the firm being sustained, we find a sufficient consideration for the promise to pay one-third of the loss. “ A valuable consideration consists in some right, interest, profit, or benefit accruing to the party who makes the contract; or some forbearance, detriment, loss, responsibility or act, labor or service, on the other side”. (Story on Prom. W. §186.) Let the judgment be affirmed.