Norris v. Slaughter

Opinion by Greene, J. Bill to enforce an agreement to compromise and settle ail disputes between the parties and to stay proceedings at law. In the answer, defendant Slaughter admits that he obtained a judgment, execution and levy against Norris, and that he married his daughter, but denies that he bound himself to receipt for or satisfy the judgment; denies that he agreed to give complainant a receipt for any amount, and denies the contract set forth in the bill. The answer admits that there was some talk about a compromise and that the matter was discussed in between defendant and one James Craig, but postively denies that any contract was ever executed or completed. Decree below for complainant. The depositions establish the fact that the compromise referred to in the bill and answers, was not executed ; that it was a mere executory promise to release judgment upon condition that a part was paid. It appears that Slaughter had a judgment against Norris for over $800 ; to satisfy which, Norris was to give a note for $364, and settle some other claims which would amount in all to about $600. As Norris inpart performSd his portion of the contract, it is claimed that the court below was justified in rendering a decree against defendant. But it does not appear that Norris performed any part before Slaughter refused to consummate the arrangement. Besides, Norris had done nothing which he could [117] not readily retrace or avoid. No new or additional benefit resulted to Slaughter from this executory contract. He derived from it no benefit to which he was not before entitled. No higher security or additional obligation was to be given; but a judgment was to be surrendered for a mere promissory note and promise to settle certain claims which in the Aggregate amounted to considerably less than the judgment. Where then was the consideration for this exeacutory agreement? Clearly there was none. The maxim then applies: Me nudo facto non oritur actio. The doctrine is well settled, that a mere promise to take part of a debt for the whole, is without consideration and void. This is universally true where such naked promise 'is merely executory; and it has been so held repeatedly where the promise is executed. 13 John. 353; 9 ib. 333; 5 ib. 391; 14 Wend. 100; 5 Pick. 44; 2 Dum. and East. 24, 27. Smith’s Leading C. 326, 330. We are not prepared to go to the extent of some of the New York cases in declaring an executed contract void for want of consideration. There is a wide distinction between contracts executed, and those which are merely executory. A mere promise to give B. §100 is void ; but a gift executed to B. cannot be recalled. So, a promise to cancel a debt or satisfy a judgment of $800, upon the payment of §600, is the same as a promise to give §200, without consideration; but an executed release of the debt, or an executed satisfaction of the judgment upon a payment of the §60, may he regarded as an executed gift of the remaining §200, and therefore valid. By many of the authorities, even this distinction has not been recognized, and still we can see no good reason why it should not prevail. But as the contract in the present ease was merely executory, and was without consideration, it cannot be enforced. As this principle has already been adjudicated by this court Frentress v. Markle; 2 G. Greene, 553, it is useless to enlarge upon it now. G. Mason and J. C. Hall, for appellant. Geo. C. Dixon and D. Rorer, for appellee. 1-he compromise its this case, it is contended, presents peculiar claims, for the interposing sanction of equity, because it is for the' settlement of a family difficulty. In such a case, courts of equity will doubtless go further to sustain a compromise, than they would under ordinary circumstances ; but even-in- a family compromise, a chancellor will not do violence to an established rule of law; he will not enforce an executory promise made without consideration. Such a compromise must have been “fairly and reasonably made ” in order to be enforced. 1 Story’s Equity, § 132. It must have been made. It must have been fair and reasonable. But in the present case, the compromise was not’ made, it was only commenced ; it was not fair and reasonable, because it was without consideration. We conclude then, that the equities of the case do not justify the decree rendered in the district court. Decree reversed.