Hawley v. Farrar

Prentiss, J. delivered the opinion of the court. It is .very manifest that there was no fraud in the sale of the tin, which formed the consideration of the note upon which this action \vas brought: and it is not pretended, that there was any warranty express or implied. It is very clear,, therefore, that the plaintiff was under no obligation to remunerate the defendant for any defects in the tin : and the promise afterwards by the plaintiff, to make an allowance by way of compensation on that account, was plainly without any consideration to support it, and could give the defendant no legal claim to a deduction from the price stipulated in the note to be paid. In Smith vs. Ware, 13 Johns. R.-257, where land was sold and conveyed, as supposed to contain á certain quantity, but without any warranty, and a deficiency was afterwards discovered, it was held, thattherewas no obligation on the vendor to compensate the vendee for the deficiency,, and that a promise to pay for the same was without consideration and would not support an action. We are aware, that a moral obligation to pay a debt, or perform a duty, is la sufficient consideration for an express promise, although no legal liability existed at the time of making the promise, or, indeed, ever existed ; but in such case, there must be a strict and undoubted moral obligation. Indeed, it seems that a promise to do that which the law did not render compulsory, wil^ not give a right of action, except where there was an original consideration beneficial to the party promising, and which might have been enforced, through the medium of an implied promise, had it not been for some statute provision, or some positive rule of law, .which exempted the party from legal liability, in the particular in [423] stance.— Chit, on Con. 13 — JYote to Wennat vs. Adney, 3 Bos. and Pul. 252. — The present case, certainly, does not come within the rule thus laid down. Indeed, the jury, under the instruction given them/ mus have found that the plaintiff purchased the tin for the defendant at his special request, and delivered it to him, in the same condition in which the plaintiff had purchased it, in boxes unopened. Under these circumstances, there can be no pretence that there was any prior moral, or equitable obligation on the plaintiff to make the defendant a compensation; and as the promise relied upon had clearly no consideration to support it, it could not entitle the defendant to a deduction from the note. The instruction given to the jury,therefore, was right, and the judgment of the court below must be affirmed. Judgment affirmed. Read and Beardsley, for the plaintiff. Richardson, for the defendant.