Snyder v. Merchants' Insurance

The opinion of the court was delivered by Garrison, J. This is a demurrer to the first count in the-plaintiff’s declaration. This count, stripped of merely formal words, is: That the-defendant “ promised forthwith and without notice or demand, to pay, and the said plaintiff, at the special instance and request of the defendant, agreed to accept a sum of money, to-wit, the sum of four hundred and eighty dollars, in consideration of a settlement of a claim that said plaintiff had against said defendant.” The count then sets forth that the defendant, by reason of the aforesaid promise, became liable to pay the said sum without notice or demand; that the defendant has not paid the-said sum, and that an action thereby hath accrued. The count is bad. The promise of the defendant is without consideration. The “ settlement ” said to be the consideration does not extinguish a prior cause of action, if any such existed; it deprives the promisee of nothing and is of no avail to the promisor. Even such promise as there was is-not the basis of the plaintiff’s suit, for his agreement was to accept a sum of money, not a promise to pay such sum. Declarations defective in like respects are illustrated in the cases of Conover v. Stillwell, 5 Vroom 54; Union Locomotive and Express Co. v. Erie Railway Co., 8 Id. 23; Farmers’ Bank v. Blair, 44 Barb. 641; Cabot v. Haskins, 3 Pick. 83; American notes to 3 White & Tudor’s Lead. Cas. Eq. (5th Am. ed.) 406, case Stapleton v. Stapleton. In the. case in hand a notice annexed to the narr. restates the [71] action as being based upon a settlement of a loss on a fire policy. This cannot' be noticed upon demurrer. Harrison v. Vreeland, 9 Vroom 366. It serves, however, as a concrete illustration of the inadequacy of this style of pleading. The demurrer is sustained, with costs.