Gresham v. Morrow

McCay, J. What, according to the facts as they appear in the record, was the consideration passing between the makers and the payee of this note ? Surely it can, in no fair sense, be said to be slaves, Gresham held a note, made by Bostwick and one Joseph Holland, given to one Caldwell, or bearer, for negroes sold to said Bostwick and Holland. Having this note, as his own, Gresham gave it up, and took the note sued on in lieu of it. The former debt was due from Bostwick and Joseph Holland as joint promisors, both interested in the consideration. This debt is due from Bostwick and Benjamin Holland, and the latter is only security for Bostwick. It is clear that this note is not a simple renewal of the former. One of’ the parties has dropped out of the contract, a new party has come in his stead, and he only as security. In other words, the negro note was settled, discharged, satisfied. In the language of our Code, section 2682, “it ceased to exist.” The consider [489] ation of this note is not the negroes, but the "debt due from Bostwick and Joseph Holland. By taking this note, Gresham lost his right to go on the estate of Jos. Holland, and consented to look to Bostwick alone and Benj. Holland, his surety. A damage or loss to the payee is a sufficient consideration for a contract. Clearly, the loss of his right to go on Joseph Holland was a loss to Gresham. It is the same as if he had given up the origninal note for the note of two strangers to the original contract; True, Bostwick is the same man in both contracts, butin one he is a joint promisor with another, and in the other he is' the sole principal, Benjamin Holland being surety. Almost certainly, the estate of Josepb Holland has paid its half of the negro note. Perhaps Benjamin Holland has gotten credit for it as administrator. It is not probable that Joseph Holland got clear of his liability on that note for nothing. There must have been some new consideration to bring about' so entire a change in the relative rights of the parties, as exists in a note made by Bostwick and Joseph Holland, both principals, and a note made by Bostwick, principal, and Benjamin Holland, security. This could have been no mere renewal. The consideration 'of the note sued on was not a slave, but' the motives and inducements, whatever they were, which induced the giving of this note instead of and in satisfaction of the negro note. The loss to Gresham is apparent. The gain to the estate of Joseph Holland is apparent. What induced Bostwick to become liable alone does not appear. But, without doubt, this is a new contract, made with different motives and for new considerations, from the note given for the slaves, and the consideration of it was nota slave, but'the satisfaetion of the slave note.’ The mere taking of one note in renewal of another, is not a satisfaction of the first. Nor is the taking a note of a third person, unless the first note be given up, or there be an agreement that the note of the third person is taken in satisfaction. Here then is a change in the parties, and the first note is given up. It ceased to exist. - It was paid, just as much as though it had been paid in cash. Judgment reversed.