Barlow v. Smith

Baylies, J., delivered the opinion of the Court.- — It appears that on the 1st of May, 1829, Samuel H. Barlow, the plaintiff, and Charles B. Janes and Gardner G. Smith, two of the defendants, made a written submission of certain matters of difference between them to the determination of George Green and Luther B. Hunt, arbitrators ; and in their submission mutually agreed to abide the award of the said George and Luther B., and that the same should be a full and final settlement. This submission was not made a rule of court, but was simply the act of the parties. It was not under seal, and the parties relied on their mutual [144] promises to carry it into effect. Also this submission was revocable at the pleasure of either party at any time, before the award was made ; and the party revoking, in an action on his promise, would be liable to nominal damages only, unless the other party had put himself to trouble and expense in making preparations for a hearing before- the arbitrators. While these were the rights and liabilities of the parties to the submission, the defendants signed the agreement, to wit; “In consideration of the within “ submission, we hereby jointly, and severally, agree to pay what- “ ever sum may be awarded (if any) to the said Barlow within “ ninety days from this 1st day of May, 1828.” On trial of the action, in the court below, the plaintiff offered this agreement in evidence to the jury; to the admission of which the defendants objected : first, for variance ; and secondly, for want of consideration: but the court overruled the objections, and admitted the agreement. Whether the county court erred in this is now to be determined. Every agreement not under seal is, in law, regarded" a parol agreement,and will not be binding unless made upon adequate consideration.^ That consideration must generally be, either a matter of advantage to the promisor, or detriment to the promisee, or both, brought about in consequence of a previous request, express orim-plied, of the promisor^JFeii on Guarantees, 3,4.) (Butin addition to this, if a man be under amoral obligation, which no court of law, or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration : as if a man promise to pay a just debt, the recovery of which is barred by the statute of limitation ; or if aman, after he comes of age, promises to pay a meritorious debt contracted during his minority, but not for necessaries ; or if a bankrupt in affluent circumstances, after his certificate, promise to pay the whole of his debts; or if a man promise to perform a secret trust, or a trust void for want of writing by the statute of frauds. In these, and many other instances, though the promise gives a compulsory remedy, where there was none before, either in law or equity ; yet if the promise is only to do what an honest man ought to do, the ties of conscience upon an upright mind are a sufficient consideration. — (1 Tidd, 370; Cowper, 290.) So a promise for promise, made at the same time; or forbearance to sue a legal demand, is a sufficient consideration. — (1 Saund. 210 ; Hardres, 103.) But a promise made on a past consideration is not binding on the defendant. — (2 Strange, 933.) If an agreement be all on one side, and the plaintiff be not bound by it, [145] his a nudum pactum, and the defendant is not bound. — (3 T. R. 653.J So where the plaintiff declared, that in consideration he, at the instance of himself, had taken pains to reconcile the difference between J. S. and others, the defendant promised, &c., it was adjudged to be a voluntary courtesy, and not a sufficient consideration for the defendant’s promise. — Style’s Rep. 465.) If we apply the principles of law to the agreement of the defendants, the inadequacy of its consideration must be obvious. This agreement was not made in consideration, that at the special instance and request of the defendants, the plaintiff had or would submit to arbitrators; nor in consideration, that the plaintiff would not revoke the submission; nor in consideration oí forbearance on the part of the plaintiff to sue $ nor in consideration of any moral obligation on the part of the defendants, which a court of law or equity could not enforce ; nor in consideration of any promise of the plaintiff to the defendants, made at the same time : but it was made in consideration of the submission ; that is, in consideration of ivhat had been written and signed by the plaintiff and two of the defendants, on the other side of the paper. But this must be viewed as a past consideration, and not sufficient to support the agreement of the defendants. As two of the defendants were not parties to the submission, they could receive no benefit irom it': nor was the plaintiff prejudiced by their making it the consideration of their agreement: for his rights and interest in the submission remained precisely as they were before. And their agreement can only be sustained on a consideration of benefit to the defendants, or detriment to the plaintiff; but in this case no such consideration appears. It also seems, there is a material variance between the contract set forth in the plaintiff’s declaration, and the one offered in evidence ; but it is not necessary to decide this, inasmuch as the defendants’ agreement had no sufficient consideration to support it. The judgement of the county court is reversed, and a new trial granted^