Isham v. Therasson

The Chancellor. The questions presented by the defence are — -first, whether, regarding the memorandum of October 13th, 1891, as a promise-to assign, it is supported by valuable consideration so as to be binding; and second, whether, regarding it as a mere voluntary offer to assign, it was so accepted as to be binding. The memorandum purports to have been made in consideration of previous payments; by Mr. Therasson, of taxes c. charged on the mortgaged premises, and of the fact that at the-making of the memorandum, there existed unpaid taxes encumbering the property. To constitute a valuable consideration, which will render a promise enforceable, the promisor must thereby acquire some benefit or advantage, and the promisee, or some one for him, must, in consequence of the promise, surrender some-right or suffer loss or disadvantage. Conover v. Stillwell, 5 Vr. 54. A mere promise to relinquish part of a debt, or, which is-the same thing, to take part in discharge, or for an assignment, of the whole, is nudum pactum and without legal obligation. Day v. Gardner, 15 Stew. Eq. 199, 201; Tulane v. Clifton, 2 Dick. Ch. Rep. 351; S. C. on appeal, 3 Dick. Ch. Rep. 310. Mr, Winans did not reap any benefit or advantage from his-promise, nor did Mr. Therasson • suffer any disadvantage or loss-because of it. Mr. Therasson did not pay .the taxes and assessments in reliance upon the promise, nor did he suffer taxation because of it. The reference in the memorandum to Mr. Therasson’s payment of taxes and assessments, as the consideration for his promise to assign upon being paid $250, was not reference to a valuable legal consideration, but merely to matter of sympathetic inducement, as though the promisee had said— [14] “You have been burdened with the payment of taxes and assessments and the mortgaged lands are yet charged with taxes and assessments which have not been paid; therefore, when you pay me 5250,1 will assign my mortgage to you or to another whom you may procure to take it,” The promise thus made was clearly voluntary and incapable of enforcement, prior to the payment or tender of the $250. Regarding the memorandum in the light of an offer to assign -the mortgage, it is noticed that it is conditioned upon the receipt of $250. Its language, divesting it of superfluous words, is: “ I agree * * * to assign * * * in consideration of receiving * * * the sum of $250.” The only effective .acceptance of such an offer was the payment or tender of the -$250. Prior to that payment, or the legal tender of the payment — which itself would furnish valuable consideration, Cutting v. Dana, 10 C. E. Gr. 265 — the whole matter rested in mere voluntary promise or offer, which was revokable at the pleasure of the promisor or his legal representatives. Houghwout v. Boisaubin, 3 C. E. Gr. 315. It is clear that, after affording Mr. Therasson ample opportunity to avail himself of the offer by a proper acceptance, the .administrator of Mr. Winans withdrew it. Upon this consideration, I conclude that the complainant is •entitled to a decree. It appears that the successive holders of the mortgage have, at times, been in possession of the mortgaged premises upon an .agreement that the value of their possession should be credited upon accruing interest, therefore it should be referred to a master to take an account upon the amount due upon the mortgage, ■allowing credit for the value of such possession.