Township of Danby v. Beebe

Ostbander, J. {after stating the facts). Passing all contentions relating to the delivery and acceptance, according to its terms, of the bond, we go at once to the further, and the controlling, question, which is, whether, assuming the bond to have been so delivered and accepted, it is a valid obligation in the hands of the obligee. No consideration, in fact, moved from the obligee to the obligors, and no burden has been assumed, or undertaking begun, by the obligee in reliance upon the bond. The act or thing which is recited as a condition precedent to paying the money was not the act of, and did not spring from the action of, the obligee. Nor did it move at the instance of the promisors. At most, they aided action moved for by a third party. The validity of the bond, if it is valid, depends, then, upon the facts that the bridge was of peculiar value to the obligors, and that the execution and delivery to the plaintiff of the bond influenced the supervisors to lay a burden upon the plaintiff township. There is judicial precedent for the proposition that the statute (3 Comp. Laws, § 10186), which provides that in any action upon a sealed instrument the seal thereof shall only b.e presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same effect as if such instrument were not sealed, has no application in a case where a consideration, passing between the parties thereto, was never contemplated. Aller v. Aller, 40 N. J. Law, 446. The reasoning employed is that, no consideration for the promise having been contemplated, in the absence of fraud, illegality, or mistake, the rights of creditors not being involved, the law should, notwithstanding the statute, execute a promise made in a writing, sealed and delivered with the most solemn sane [317] tion known to the law; that, if such an instrument contained the recital that it was given upon no consideration, it would not for that reason be refused enforcement. See, also, Harris v. Harris’ Ex’r, 23 Grat. (Va.) 737. But the effect given to our statute has been stated to be one which with respect to the consideration places simple ex-ecutory, and sealed executory, contracts upon the same footing. Green v. Langdon, 28 Mich. 221, 226; Hobbs v. Electric Light Co., 75 Mich. 550. It must be held, in the. light of the evidence, that the bond is a mere voluntary, gratuitous promise by the obligors to the obligee to pay a sum of money. Being so, it cannot be sustained as a gift in jurisdictions in which a seal may be impeached. 4 Am. & Eng. Enc. Law (2d Ed.), pp. 665, 666; Matter of James, 146 N. Y. 78. What has been said disposes also of the contention that the promise, though gratuitous, may be sustained and enforced as a subscription to an object of public utility or necessity (Stevens v. Corbitt, 33 Mich. 458; Long v. Mayor, etc., of Battle Creek, 39 Mich. 323), since the promise is not made to one performing or expected to perform anything in reliance upon the promise; nor, treating the promise, as we must, as single, was it made in consideration of other promises or contributions. The judgment is reversed, and, as it appears that upon no theory can plaintiff recover, no new trial is awarded. Carpenter, Montgomery, Hooker, and Moore, JJ., concurred.