Dœbler v. Waters

By the Court. Stephens, J., delivering the opinion. 1. There is not enough in the bill of exceptions to show that any error was committed in rejecting the written agreement; and error must affirmatively appear. It is obvious that the bill of exceptions does not disclose the real ground on which the agreement was rejected. The- opinion of the Judge refusing a new trial supplies the deficiency, but does not show error; for from that it appears that there was a subscribing witness to the instrument. Of course the paper could not go in evidence without resorting to him or accounting for him. 2. One additional view disposes of the whole case. The question is not whether the main contract which theplaintiff and defendant made, is binding or void, but whether this particu [347] lar part of it, the draft, can be enforoed. The test is, was it a real element of the contract, or was it in truth but an exterior appendage to it — a clasp to bind it? If the former, it is meritorious and ought to be enforced; if the latter, it is a mere forfeit loiihout consideration, and therefore not to be enforced. A contract without consideration will not be enforced, and so any part which can beseparated from the rest and shown to be without consideration, will not be enforced. Want of consideration is the foundation of the doctrine that a forfeit cannot be enforced. In this case, there is no consideration, either of advantage to the one or of disadvantage to the other, on which this draft was given. The only evidence on that subject is that it was given as a forfeit to bind the bargain — the bargain being complete on each side, this provision was superadded as a clasp to bind it. It was added, not to cover damages which the plaintiff might sustain by reason of a failure to perform the contract, but as a penalty, the prospect of which would prevent a failure. It is easy to imagine, and it may be true in point of fact, that damage resulted to the plaintiff from the defendant’s failure to perform, but the question is, was this draft intended to cover such damage? The witness says not. He says the intention of it was not to repair the injury of a failure, but to prevent a failure. Judgment affirmed.