Cline & Co. v. Templeton

78 Ky. 550, 1880 Ky. LEXIS 59

• Court: Court of Appeals of Kentucky
• Decided: September 22, 1880
• Status: Published

Opinion

JUDGE HINES

delivered tiie opinion of the court.

The admitted facts in the pleadings in this case are: the sole consideration of the note sued on was the agreement to forbear the prosecution of a suit by Susan Cline against appellee; that the suit was brought by Susan Cline against appellee for seduction, and that at the time she was an adult unmarried woman; that at the time of the alleged assignment of the note by Susan Cline to appellants, they had full knowledge of all these facts. It is further shown in evidence that the note before maturity was discounted to the German Security Bank, and, having been protested for non-payment, it was taken up by appellants.

The questions in the case are: First. Was the note unenforceable for want of consideration ? Second. Arc the rights of the parties altered by the fact that the note was put on the footing of a foreign bill of exchange by discounting it to the bank?

That there is no cause of action, either at common law or under the statutes, in behalf of a woman for seduction, is clearly established. (Woodward v. Anderson, 9 Bush, 624.) It is .laid down, both in Parsons on Contracts and in Chitty on Contracts, that an' agreement to forbear to prosecute a claim which is wholly and certainly unsustainable at law or in equity, is no consideration for a promise. (Parsons, vol. 1, p. 440; Chitty, vol. 1, pp. 35 to 46.) ^fhis proposition appears to be so well established that further citation of authorities seems to us unnecessary./ We need not discuss the question as to whether past ednabitation is a good consideration for a promise, since it is admitted that the sole consideration was the agreement to forbear suit.

The effect of the statute in regard to the discounting of notes in bank, so as to place them on the footing of bills of exchange, is to fix the rights and liabilities of the parties as they would be if the paper had originally been a foreign bill of exchange.

In this case, appellants, having received the note sued on with the knowledge that it was without consideration, took it up from the bank with the same right in appellee to make defense as he had prior to the discounting. Appellants, being holders with notice of the infirmity in the bill, it is in their hands subject to all the defenses that existed between the original parties to the paper.

Judgment affirmed.