Parish v. Craig

Mr. Chief Justice Shepard delivered the opinion of the Court: We are of the opinion that it was error to charge the jury that the law presumed the consideration named in the contract in action had been paid and received; thereby making a prima facie case entitling the plaintiff to a verdict in the absence of proof of illegality. It is the settled rule of the common law—changed now by statute in some of the States, but not in this jurisdiction—that except in the case of sealed instruments, negotiable bills and notes, the consideration therefor is not presumed of implied, but must be proved. Lansing v. M’Killip, 3 Caines, 286-288; Curley v. Dean, 4 Conn. 259—265, 10 Am. Dec. 140; Bailey v. Bussing, 29 Conn. 1—6; Beauchamp v. Bosworth, 3 Bibb, 115; Shelton v. Bruce, 9 Yerg. 24-26; Brown v. Parks, 8 Humph. 294-297; Moore v. Waddle, 34 Cal. 145-147; Davis v. Stout, 126 Ind. 12, 22 Am. St. Rep. 565, 25 N. E. 862. The consideration for a contract like this should be pleaded [146] in order that the court may be informed as to its legal sufficiency, and the defendant of what he has to disprove. Moore v. Waddle and other cases cited supra. A further exception has been maintained in some instances where the non-negotiable contract contains the recital “for value received,” or “for a valuable consideration.” Frank v. Irgres, 27 Minn. 43, 6 N. E. 380; Whitney v. Stearns, 16 Me. 394. It is not necessary to discuss or take issue with the doctrine of those cases which treat such recitals as explicit admissions of a valuable consideration for the promise, for the reason that there is no such recital in this contract. Its recital—“In return for pecuniary and other aid rendered to me”—has no such common or technical meaning. It can only be made certain by pleading and proof. The application of the general rule before stated, both in respect of pleading and proof of the substantial elements of the actual consideration, in the present case, is particularly apt. In,the first place, the signer of this unilateral contract having died before action brought, the representative of his estate ought to be informed of the elements of the entire consideration, both as regards the nature and character of the pecuniary aid, and the other aid in addition thereto, if those last words have any real significance. Again: At the time of certain items of money advanced, as given in the bill of particulars, the plaintiff’s intestate was in the service of the United States; during which period and for two years after his retirement therefrom, he was prohibited by express statute from rendering aid to anyone in the prosecution of a claim against the United States. It is quite true, as stated by the court in one of the special instructions, that one in the government service is not, for that reason, denied the right to give or loan money to a needy friend for his subsistence, or that of his family. But it must not have been furnished to aid him in the prosecution of a claim against the United States. Even if pecuniary aid was extended in this instance for a legal and proper purpose, the contract for payment therefor out of the proceeds of said claim, when allowed, included nevertheless, other aid as a part of the consideration of the promise. If such other aid consisted in [147] furnishing information derived from the records of his office, and making computations therefrom of the damages sustained by the claimant, while in the service, or within two years after retirement therefrom; or other aid, during the same period, in the efforts of claimant to obtain legislative recognition and payment, aid of such character was in violation of law, and no lawful promise could be based upon such a consideration. “Every part of the consideration goes equally to the whole promise; and therefore, if any part of it is contrary to public policy, the whole promise fails.” Hazelton v. Sheckells, 202 U. S. 71—78, 50 L. ed. 939-941, 26 Sup. Ct. Rep. 567, 6 Ann. Cas. 217. We deem it unimportant, as well as unnecessary, to pass upon the other questions that have been raised. That the cause will be tried again is a sufficient reason for refraining from passing upon the motions to direct a verdict, and for judgment notwithstanding. A different state of facts may be presented on another trial. It may be remarked also that some of the assignments of error are subject to the objections presented thereto, for want of particularity of statement. Eor the error that has been pointed out in giving the instructions to the jury that were excepted to, the judgment will be reversed with costs, and the cause remanded with direction to set aside the verdict and grant a new trial. Reversed. A motion for a rehearing was overruled May 26, 1913, and a motion to recall the mandate denied June 2, 1913. A motion for modification of opinion was denied June 2, 1913.