Moar v. Wright

Royce, J. delivered the opinion of the court. As the action W£s brought upon the defendant’s promise, and not upon the allowance of the commissioners, the plea related to miatter of inducement and not to the gist of the declaration. If then the supposed repugnancy or variance in the statement of the probate re — 63 — cord would not have availed the defendant in evidence under the general issue, the replication was a sufficient answerto die plea. The record, described in the replication, did show an allowance to Isaac C. Brownell, of the ‡59,07, on book account, and was therefore, for all the purposes of the action brought, consistent with the statement of the allowance in the declaration. The existence of a legal claim to that amount, was in this instance the only-necessary and material subject of hvérment; though in an action directly upon the allowance of commissioners, a further or different description of the record might be necessary. The plea and replication may therefore be laid out of the case, and the questions to be decided, are those which would arise upon a general demurrer to the declaration. The most important objection raised,is to die alleged consideration of the defendant’s promise. This was avered to consist in the assignment of the debt by Isaac C. Brownell, to tire plaintiff, for a valuable consideration, with an order of payment to the latter, notice thereof to the defendant, and assets in his hands. And it is contended that these facts, either separately or in combination, did not malte to the defendant a valid consideration for the promise declared on. With respect to the assignment of a debt for a valuable consideration, with notice to the debtor, as alone a consideration for his promise to pay the debt to the assignee, there is certainly some contradiction in tire audrorities referred to. In Connecticut and Massachusetts, it appears to be well settled that such consideration is good — 1 Sw. Dig. 438.—10 Mass. 319, Crocker vs. Whitney.—12 Mass. 283, Mowray vs. Todd.—13 Mass. 292, Usher vs. D'Wolfe.—15 Mass. 387, Coolidge vs. Buggies ; while in some of the recent English authorities it seems to be considered that a new and additional consideration, as forbearance or something equivalent, should induce the promise'of the debtor to the assignee.—Ham. Par. 100.—1 Chit. Pl. 10, 95.-This courtis inclined to adopt the former doctrine, which is thus stated by Jackson, Judge, in tire case first above cited — “ The general principle has been long well settled that such assignment widr notice to the defendant, imposes on him an equitable and moral obligation to pay the money to the assignee : and aldrough — 64 — such an obligation is not sufficient to sup-* port an implied assumpsit, so as to enable the assignor to maintain an action in bis own name, yet it is a good consideration for an express promise to that effect.” As to the position urged by the 'defendant’s counsel, that moral obligation is not a sufficient consideration for an express promise,* we think, without intending to question its general correctness, that it has little if any bearing upon the present case. The cases to which that doctrine has hitherto been confined, are those in which no previous legal obligation to pay die debt or perform the duty in question, had ever rested on the party promising; but in cases like the present, there is already a legal obligation to pay the debt, and the moral duty only affects the question, to whom the antecedent legal duty shall be performed. Unless it is assumed that payment to die assignee, instead of the original creditor, is an •inconvenience to die debtor, (and certainly no such general proposition .can be advanced,) a distinct consideration for that purpose seems to be needless. There is little reason to doubt of this conclusion, When it is considered that the obligation of the debtor to the assignee is more than a mere moral duty; it is at. least an obligation binding in equity, and one which even the courts of law will not permit the debtor to evade.r-1 B. & P. 447, Legh vs. Legh.—Ham. Par. 100.—8 Mass. 465, Roylston vs. Green.—13 Mass. 304, Jones vs. Witters. Another reason in support of the promise in this case, may arise from die nature of the property or fund in respect of which it was made. The difficulty raised by the authorities opposed to the foregoing opinion, consists in a supposed distinction between a mere personal debt aijd a specific deposit or appropriation; it being universally agreed that in the latter case, an assignment with notice to the depositary, followed by his assent and promise to the assignee, works an .effectual transfer of the right. It is held that by these means ■ -the money has changed owners, and the depositary has become B’s agent as he was C’s before.—Ham. Par. 100.—1 Sw. Dig. 438.— 1 H. Bl. 239.—4 Esp. N. P. C. 204. Now it is thought ¿hat some analogy of the present case to die one stated may be — 65 — perceived; for the subject of this promise, was not a personal debt of the defendant but a specific charge upon the estate in his hands to be administered'. The counsel for the defendant have made a further point in this case which merits particular attention. It is insisted that though the promise stated in the declaration may enable the plaintiff to bring an action, yet the defendant can be sued thereon only as executor ; for that no sufficient consideration is disclosed to charge him in his own right. The following proposition has been extracted from decided cases, and is laid down in several books as a settled rule ; “ that if the action is brought against the executor in that character, to recover a demand out of the testator’s estate, any special promise to pay the testator’s debtis a mere nudum pactum, if there are no assets, and if there are any, the extent of the promise is measured by the extent of the assets, or in other words, the promise superinduces no obligation upon tire original representative liability.” Rob. on Wills 135-6.—Rob. on Fr. 205.—1Sw. Dig. 346-7-8. This rule, however just, does not in terms extend to a case where an executor is sued in his private right, upon his special promise to pay a debt, having ample assets applicable to that object. But a further principle is advanced, that a liability or indebtedness in one right is not a consideration for a promise to pay in another right. — 7 T. R. 348,Mitchinson vs. Hewson and Rann vs. Hughes there cited. It is not improper to consider the doctrine advanced in these cases, with some reference to the facts presented. In the former, a husband was sued upon his promise, without any new consideration to pay the debt of his wife dum sola, when the effect of the promise, if sustained, was to convert a conditional liability into one which was absolute; and in the latter, an administratrix indebted in that right, in consideration of that indebtedness, had promised, in the same capacity, to pay the debt when requested. There was an averment in tire declaration, that the intestate diedposses-edof effects sufficient to pay the debt, but no averment that any assets had come to the hands of the defendant to be administered. The defendantpleaded, 1 .non assumpsit, 2.fleneadministramt,and 3. plane administravit except as to certain goods, which were not sufficient to pay an outstanding bond debt. The first issue being found for the plaintiff, and the two last in favor of tire defendant, a judgment on the first was entered up in the Kings’ Bench a — 66 — gainst the defendant debonis propriis. This judgment was reversed in the Exchequer-chamber, and the judgment of reversal was affirmed in the House of Lords. The judgment of the King’s bench does not appear to have gone upon the ground that the defendant had assets, or that there was an adequate or legal consideration for her promise as a personal undertaking, for the record negatived both these suppositions, but on the ground, that by pleading a matter within her own knowledge which the jury had found to be false, she had subjected herself to a judgment in that form. — Cro. Jac. 671—2 Rob. on Wills, 125-6. The reversal therefore was nothing more, in effect, than the correction of an error in the form of entering up judgment against an administratrix sued in that character. With these observations upon the two cases above mentioned, their authority would seem to be limited to this proposition; — that where the liability in one right is to be enlarged, or rendered more fixed and certain, in another right, a new consideration is necessary to sustain the new obligation. The case of an executor sued in his private right, op a personal promise to pay a demand, for which as executor he was both indebted and compellable to pay, by reason of sufficient assets in his hands, does not seem to have occur-ed before, except in the instance of legacies. For these it was once held that he was personally liable, if he had expressly promised in consideration of assets. — 2 Cowp. 284, Atkins vs. Hill.—id. 289, Hawkes vs. Saunders.—1 T. R. 716. These cases were afterwards overruled, because the subject of legacies was considered to be exclusively of equitable jurisdiction, but not for any objection in point of law to the form of the action, or to the consideration of the executor’s promise. — 5 T. R. Deeks vs. Strut. But it is further urged as a general principle of law, that every promise must be co-extensive with its consideration; and hence it is infer-ed, that if the whole consideration concerns the defendant in his capacity of executor, his promise can affect him only in that character. 3 T. R. Nerot vs. Wallace, and the two cases in 7 T.R. above cited. The reason of this maxim is readily discovered ln every case, where a departure from it would operate to create or fix a duty, without a corresponding advantage or equivalent; but when neither the extent nor certainty of the .obligation is alter — 67 — ed, but only the character or right in which it is tobe discharged, the rule is one of form only. In this case it appears, as well by a distinct averment, in the declaration to that effect, as by the language in which tire defendant’s promise was expressed, that he had assets applicable to the payment of this particular debt, and sufficient for that purpose. As executor then he was not merely indebted, but was also compellable to pay, in a due course of administration. We also think that the assignment of the debt to the plaintiff for a valuable consideration, and the equitable obligation to him which was thereby imposed upon the defendant, are to be noticed as ingredients in the consideration for the promise which was made. Had the defendant chosen to promise as executor, diere is no occasion to dispute that he might have been declared against in drat character; but as he professed to act in his private right, there seems to be no solid objection against allowing to the act all that legal effect which was intended by the parties. It is proper however to notice one case which is relied on as being directly opposed to this decision. I Saund. 210, Forth vs. Stanton. That case was argued upon two grounds, 1. That the assignment of the debt by Neve and-áis op to the plaintiff was but a power of attorney to receive payment, and did not give to tire plaintiff any interest in the debt, of which the court could take notice; and 2d, that there was no consideration for a promise which should charge the administratrix personally. The reasons of the court are not given, but judgment was rendered for the defendant. Now the first ground there taken would not at this day be sustained; for tire courts can and will take notice, that an assignee for a valuable consideration is the equitable owner of the debt, and the legal owner also for every purpose, but that of suing upon the original contract or cause of action. It is true that upon the other point, that case is generally cited as authority, and has a strong resemblance to the present. There is one material point however in which the resemblance fails. It is there alleged that the debt was £100 and that the defendant had received assets to the value of £100, but it is not alleged, that at the time of making the promise to the plaintiff, she had assets legally applicable to that demand. Therefore for any thing which appears, the promise, if enforced, might have subject — 68 — ed her'to a personal loss. And as the action-was one in which plane administravit could not be pleaded, there was no admission of assets by omitting that defence. That case is therefore not decisive of the present. A difficulty has been started, by supposing that before die execution of this promise die defendant had died, or been removed from the office of executor. To this the following answer would seem sufficient : — if upon accepting the personal undertaking of the executor, the creditor discharged the estate, the promise would remain in force, and the estate would be holden to refund the sum paid upon it; and if no such discharge was given, die promise might become invalid, when the fund which made its principal consideration was taken out of the promisor’s hands. "We have therefore come to the conclusion, that die defendant’s promise, as set forth in this record, was founded on an adequate legal consideration, that it was a personal promise, and diat he was properly impleaded thereon in his individual capacity. Church and D. Robinson, for the plaintiff in error. Hall and Isham, for the defendant in error. It is furdier objected that the sale 'of property by the defendant was a condition precedent, and should have been avered in the declaration. The promise was to pay “in a reasonable time, when he should sell property belonging to the estate.” If these expressions admit of any other construction than the one now contended for, it is the duty of the court to reject this; since it is nothing less than saying, that the defendant by a voluntary, and perhaps wrongful, neglect to convert the estate into money, has it in his power to frustrate his agreement. We take the evident meaning tobe, that the defendant was to pay in a reasonable time to raise money for that purpose by the sale of property, or which is "die same tiling, that within a reasonable time, he would raise money by sale of property and pay the debt. The result is that the judgment of the county court must be reversed. Hall, for the defendant, now moved for liberty to withdraw the demurrer and plead the general issue, which was granted on terms. Skinneb, Ch J. not being present at the argument took no part in this decision. Footnotes [*] See this subject very ably and elegantly discussed, by Parker, Ch. J. Mills vs. Wyman, 3 Pick. 207.