Hamaker v. Eberley

Tilghman C. j. after stating the manner in which the promise was laid in the second count, delivered his opinion, as follows:. 'It is objected on the part of the defendant, that this promise is void, for want of a consideration; that it is a mere gratuitous promise of one man, to answer for the debts of another. The principle on which cases of this kind turn, is very well settled. To make a consideration sufficient in law to support: an assumpsit, there must be some benefit arising to the defendant, or some injury or loss to the plaintiff. A promise to forbear a suit against a man, against whom the plaintiff has no legal cause of action, is not a sufficient consideration. The declaration in this case is not expressed in terms altogether free from doubt. It is not clearly stated, whether the promise, made by the plaintiff, was, to forbear an immediate suit, or to forbear to su¿ when his cause of action should arise. At the time of the conversation between the plaintiff and defendant, the plaintiff had no cause of action against Hummel, because he had not paid the bonds in which he was bound as his surety. But inasmuch as the plaintiff’s expressions were, that he should have to pay the money, and that he -would sue Hummel, I think it would not be going too far, to intend, after a verdict, that the promise was, that the plaintiff would forbear to sue Hummel after he had paid the money for him; and this, I have no doubt, would be a good consideration to support the promise of the defendant, to be answerable for HumméPs debt; because the forbearance to sue, after the cause of action attached, would be as great an injury to the plaintiff, as the immediate forbearance to sue, on a cause of action existing at the time of the promise. But the case does not rest entirely on this point. It is stated besides, that the defendant did, by consent of the plaintiff, include the amount of the debt for which the plaintiff was security for Hummel, in a judgment confessed to him by Hummel. Now after this, the plaintiff could never have recourse to Hummel. He gave up all legal redress, either present or future, under any circumstances which might arise. This was a manifest injury to [510] himself. Whether the defendant could gain any thing by this • arrangement, is altogether immaterial. That was a matter for his own consideration. It was very possible, however, that it might be an advantage to him in his transactions with Hummel. But, at all events, it deprived the plaintiff of all power' ■to bring an action for his own indemnification against Hummel, even after he paid the bonds to Lincoln. Another objection to the second count was, that it is not stated how long the forbearance was to be; but to this it has been well answered, that a promise to forbear in general, without adding any particular time, is to be understood a total forbearance; and there are many precedents to support an allegation of this kind. I am therefore of opinion, that on the whole of the second count, there appears a sufficient consideration to support the-defendant’s assumption, especially after a verdict. Thus much for the motion in arrest of judgment. The motion for a new trial depends principally on the evidence. Although I may not perfectly agree with every sentiment expressed by the judge of the Circuit Court in his charge to the .jury, yet I cannot say that I see such substantial error, as would authorize this court to grant a new trial, for misdirection in p’oint of law. Whether the verdict was or was not against the weight of the evidence, is not easy for us to decide; because the evidence was complicated, contradictory, and to be judged of in no small degree, by the character of the witnesses, of which we know nothing. The judge who tried the cause, says he is well satisfied with the verdict. Under such circumstances, I cannot think myself warranted in granting a new trial, on the ground of the verdict being against evidence. Upon the whole of this case, therefore, my opinion is, that the judgment of the Circuit Court be affirmed. Yeates J. was of the same opinion. Judgment affirmed.