Colburn v. Gould

1 N.H. 279

• Court: Superior Court of New Hampshire
• Decided: October 15, 1818
• Status: Published

Opinion

* Bell, J.

The defendant in support of his demurrer contends that the plaintiff’s cause of action rests solely on a naked promise to discharge the whole of a debt upon the payment of a part of it. Such promise, it is truly said, is without consideration — a mere nudum pactum, and void. It was so decided in 1st Str. 436. Cumber vs. Wane.-2 Term Rep. 24. Heathcote vs. Crookshanks, and 5 Rep. 237. Pincel’s case.

The cause of action stated in the plaintiff’s declaration is altogether different from what the defendant supposes it.— It is not the case of a promise to receive payment of a part of a debt in satisfaction of the whole ; but a promise to accept the satisfactory security of a friend of the debtor for a part of the debt, as a consideration for what the facts of the case show was considered as a doubtful security for the whole. To the validity of such a contract there is no legal objection. The promissory note given by the friend of Colburn to Gould upon the faith of his promise to discharge the'residue of the debt, was a good consideration for Gould1 s promise. The acceptance of the note by Gould was, an execution of the agreement, and his collection of the remaining part of the execution was a fraud upon Towne, who gave the promissory note to Gould under the impression, that by doing so he had relieved his embarrassed friend from the whole of this debt. It was an injury to Colburn which the law is competent to redress.

When a creditor and his insolvent or embarrassed debtor agree that if the debtor will procure a solvent friend to give his security for a part of the debt, that the creditor will release the residue, and upon the faith of that agreement a friend is induced to give such security, the contract is valid, and the law will not suffer the creditor to violate it with impunity.-Steinman & al. vs. Magnus. 11 East. 370.-Jackson vs. Duchaire. 3 Term Rep. 552.-Cockshott vs. Bennett. 2 Term Rep. 764.-Jackson vs. Lomas. 4 Term Rep. 168.-Smith vs. Bromley, Doug. 671.

Judgment that the declaration is sufficient, Sfc,

Justice Woodbury having been of counsel did not sit to'this case.