Whelan v. Edwards & Hackney

— Stephens J. By the Court. delivering the opinion. 1st. The letter of Charles Whelan contains a reference to some debt which his son Francis owed to Richard H. Edwards ; and upon- the recognized principle of explaining a latent ambiguity, or to state the same thing in perhaps a more satisfactory form, upon the principle of reading the letter in the light of surrounding circumstances, when the debt to which reference is made is not stated upon the face of the paper, it was competent to show what debts existed, and perhaps even to show to which particular one the reference was made ; but then the parol evidence should, as I think, have been in harmony with the letter, and not contradictory to it. The letter spoke of a debt to Edwards, the proof related to a debt to Edwards & Hackney. For my own part, I think the evidence was inadmissible. And for a similar reason, I think the letter itself was inadmissible. It did not support the declaration. The declaration sets forth a promise to pay a debt to Edwards & Hackney, but the letter shows a promise to pay a debt to Edwards. 2d. But while my colleagues were not quite content to repose upon the foregoing view, we are all agreed that there was no consideration to support the promise in this case. It is the naked case of a promise to pay the debt of another; [319] there is no consideration, either of gain to the promisor or of loss to the promisee. It is too clear for argument, that there was no gain to Whelan, but it was said there was loss to Edwards. The letter (referring to another which Whelan had received from Edwards) does use this language: “You say you will take the $ 150, and be the loser that much.” This obviously was meant to say, “ and be the loser of the remainder.” He then adds : “I will give the $150.” True, here was an offer to accept one hundred and fifty dollars in discharge of the whole debt, and a promise to give it. But the son was not a party to that arrangement nor privy to it Suppose Edwards had sued him for the whole one hundred and seventy dollars, would it have been any defence for him to say, “you have agreed to discharge me?” This is a test Even if Edwards had got the one hundred and fifty dollars, in money, what would prevent him from collecting die debt from the son ? if another man pays my debt for me, without my consent, it is no payment for me. I remain liable. If this arrangement had been made between all three of the parties,, the case would be very different. But as the case stands, to allow the recovery, would be for Edwards to lose nothing, but to get one hundred and fifty dollars from the father, and yet leave his demand against the son intact. If Edwards should enforce his claim against the son, after payment of the hundred and fifty dollars by the father, the latter might doubtless recover it back; but because he could recover it back, is a very good reason why he should not be made to pay it. Judgment reversed.