Austell v. Humphries

Atkinson, Justice. The official report contains a correct synopsis of the original pleadings in the case, and a correct statement of the grounds of the motion for new trial. Hpon the trial it was shown that Scott, one of the defendants, jointly with Humphries, the plaintiff, was interested in certain real estate. Humphries sold his interest in this real estate to Scott, and at the time of sale made an agreement with Scott, that l;e could appropriate the amount of money due by Scott to Humphries to the payment of a debt due by Humphries to one Healey. To this arrangement Scott assented. He subsequently sold the property to another person, taking his notes therefor, and [415] agreeing with Humphries that the latter should have an interest in the notes to the extent of the debt due by Humphries to Healey; in other words, that so much of the moneys realized by Scott upon such notes as was necessary to the discharge of the Healey debt should be by Scott so appropriated. There was no assignment in writing, or otherwise than as above stated, to Humphries by Scott, of any interest in these notes. Subsequently Scott turned over the notes to Austell, the other defendant, to be by him appropriated to the payment of certain joint obligations due by Scott, Austell and another to other persons, but at the time the notes were delivered to Austell, told him of the prior transaction between himself and Humphries, and upon the agreement that Austell would pay, out of the proceeds of the note, the Healey debt, he assented to the appropriation of the notes by Austell in the manner above indicated. Subsequent to the delivery of the notes by Scott to Austell, and subsequent to their- appropriation by him, Austell promised Humphries to save him harmless as against the Healey debt. For this latter promise there was no consideration, except in so far as the previous transaction might have been treated as a consideration therefor. The Healey debt, was afterwards sued to judgment against Humphries, and he brought this suit against Austell and Scott. A verdict was rendered in his favor against both. Austell moved for a new trial, and upon his motion being overruled, he excepted. The question is, is Austell liable to Humphries either in consequence of the breach of his contract made with Scott, or in consequence of his failure and refusal to make good the direct promise to Humphries to save him harmless as against the Healey debt? The plaintiff declares upon the express promise, joint and several, alleged to have been made by Scott and Austell with him to pay the Healey debt. Does he establish such a privity between himself and Austell as to authorize a recovery against him? [416] That there was a sufficient consideration, as between Scott and Austell, to support the latter’s promise to pay the Healey debt, there is little room for question. There was ample consideration to support that promise in the delivery by Scott to Austell of these notes for the uses to which they intended they should be applied; but the obligation of Austell’s contract with respect to the payment of the Healey debt, as will be seen from the record, was due not to Hixmphries but to Scott, and the non-performance of that contract, according to the well settled rules of the law, gives no right of action to a person to whom the obligation of the agreement was not due, and in favor of whom the contract imposed upon the promissor no duty. 'The declaration being upon an express contract, and there having been no contract shown, either express or implied, between Austell and Humphries, Humphries is a mere /stranger to the-' agreement which was actually made, and upon no principle of the law, of which we are advised, can he maintain an action because of its non-performance. Nor do we think the parol promise of Austell made to Humphries, after the appropriation of the notes by him, was supported by such a consideration as to make it binding. It does not appear that Humphries paid anything to Austell to induce the promise; it does not appear that he parted with any property upon the strength of the promise; that his position was in any manner changed in consequence of the promise. It does not appear that he was induced to do any act, or to forbear the doing of any act, to the advantage of Austell or to his own injury, in •consequence of the promise. Therefore, while there might have been behind it the element of a strong moral obligation which should appeal to the conscience of Austell, there was no such consideration as will, in law, authorize the ■enforcement of the promise as .a legal agreement. It was ■.•nudum pactum, and not capable of being enforced. Without dealing specifically, then, with each of the [417] errors assigned upon the charge of the court, and upon the refusal of the court to charge, a new trial is awarded upon the general ground, that "the verdict is contrary to law, and ought not to have been permitted to stand. Judgment reversed.