Howell v. Wright

Hardin, P. J.: When the plaintiff produced the promissory note and read the same in evidence it established prima facie a sufficient consideration, The words “ value received,” are sufficient prima fade to make out a consideration for the promise contained in the note. (Hinman v. Moulton, 14 Johns., 466 ; Bank of Troy v. Topping, 9 Wend., 273.) It is well settled that one promise is a good consideration for another. (Briggs v. Tillotson, 8 Johns., 304.) However, they must be concurrent. (Cooke v. Oxley, 3 D. & E., 653 ; Livingston v. Rogers, Coleman & C. Cases, 331.) An agreement to render services or to perform an act is a valid consideration for a promise. (Taylor v. Rennie, 35 Barb., 272.) And an injury to one party as well as benefit to another is sufficient consideration for a promise. (Miller v. Drake, 1 Caines, 45.) However, the benefit to one party or the inj ury to the other which can avail as a consideration to support an agreement, must be a benefit to which the party is not entitled, except as a consideration of his undertaking, for the injury must be to the legal rights. (Converse v. Kellogg, 7 Barb., 590 ; Beckwith v. Brackett, 97 N. Y., 52.) The burden was upon the defendant to show that there was not any consideration for the note in suit to overcome a prima fade case made by the production of the note. We think the evidence given upon the trial established the fact that the note in suit was given by the defendant to Howell in pursuance of a request to Howell that he should transfer the notes of $3,000, and that on condition that they were so transferred the defendant would execute the note in suit. We think the testimony of the defendant, viewed as evidence, or viewed as admissions on the trial, coupled with the note produced and read in evidence, with the surrounding circumstances, satisfactorily indicate that Howell consented to part with the $3,000 notes [171] for fifty cents on a dollar, on condition that he receive the note in suit. Yielding to the request of the defendant, and making a transfer of the $3,000 indebtedness for fifty cents on a dollar to Case, and the reliance upon the promise of the defendant to give his note for the other fifty cents on a dollar, furnished a consideration for the note in suit. But if we view the evidence in another light, it seems to justify a conclusion that the defendant undertook and promised, with Orlando Howell, in the event he would take fifty cents on a dollar for the $3,000 of debt from Case, and transfer that indebtedness to Case (which was long past due), that he, the defendant, undertook, and in his own language as he states it upon the stand, “ promised to sign the note for the balance.” • The note in suit was given on six months time. If it be treated as being given for the balance of the $3,000 debt, then by the terms of the arrangement the defendant secured himself an extension of fifty cents on a dollar of the $3,000 debt for the period of six months. We see no reason why the promise of the defendant, found in the note in suit, should not be upheld. In Stafford v. Bacon (25 Wend., 384) it appeared that the defendant had compromised his debt by paying one-third thereof, and after the compromise had promised “ to pay the balance,” and the court.held “that such promise is binding, although made without any new consideration moving thereto.” Certainly there was a precedent duty and obligation on the part of the defendant to pay to his creditor 100 cents on a dollar on the $3,000 debt, and when he requested his creditor to part with that obligation for fifty cents on a dollar, and promised to pay the other fifty cents, and executed a note in pursuance of that promise, the note was supported by a valuable consideration. (Section 182 of Daniels on Negotiable Instruments.) It is said in the section to which we have referred, that a promissory note “ for the payment of a debt discharged in bankruptcy, or barred by the statute of limitations or voluntarily released, * * * would be valid as upon any other valuable consideration.” The foregoing views lead us to a conclusion that the verdict is against the evidence upon the question of consideration for the note in suit. We think there should be a new trial. [172] Judgment and order reversed and new trial ordered, with costs to abide tbe event. Boardman and Eollett, JJ., concurred. Judgment and order reversed and new trial ordered, with costs to abide event.