Fink v. Cox

18 Johns. 145

• Court: New York Supreme Court
• Decided: August 15, 1820
• Status: Published

Opinion

Spencer, Ch. J.

delivered the opinion of the Court. The question in this case is, whether there is a sufficient consideration for the note on which this suit is founded. It appears from the declaration of the testator when the note was given, that he intended it as an absolute, gift to his son, the plaintiff; alleging that the plaintiff was not so wealthy as his brothers, that he had met with losses, and that he and his brothers had had a controversy about a stall. Such were the reasons assigned for his giving the note to the plaintiff..

There can be no doubt that a consideration is necessary to uphold the promise, and that it is competent for the defendant to show that there was no consideration. (17 Johns. Rep. 301. Schoonmaker v. Roosa and De Witt.) The only consideration pretended, is that of natural love and affection from a father to a child, and if that is a sufficient consideration, the plaintiff is entitled to recover, otherwise not.

' It is conceded, that the gift, in this case, is not a donatio causa mortis,- and cannot be supported on that ground. In Pearson v. Pearson, (7 Johns. Rep. 26.) the question was, whether the gift of a note signed by the defendant to the plaintiff was such a vested gift, though without consideration, as to be valid in law; we held that it was not, and that a parol promise to pay money, as a gift, was no more a ground of action, than a promise to deliver a chattel as a gift; and we referred to the case of Noble v. Smith, (2 Johns. Rep. 52.) where the question underwent a full discussion and consideration. The- case of Grangiac v. Arden, (10 Johns. Rep. 293.) was decided on the principle, that the gift of the ticket had been completed by delivery of possession, and is in perfect accordance with the former cases.

It has been strongly insisted, that the note in the present case, although intended as a gift, can be enforced on the consideration of blood. It is, undoubtedly, a fair presumption, that the testator’s inducement to give the note sprang from parental regard. The consideration of blood, or natural love and affection, is sufficient in a deed, against all persons but creditors and bona fide purchasers; and yet there is no case where a personal action has been founded on an executory contract, where a consideration was necessary, in which the consideration of blood, or natural love and affection. has been held sufficient. In such a case, the consideration must be a valuable one, for the benefit of the pro-misor, or to the trouble, loss, or prejudice of the promisee. The note here manifested a mere intention to give the one thousand dollars. It was executory, and the promisor had a locuspoenitentice. It was an engagement to give, and not a gift. None of the cases cited by the plaintiff’s counsel maintain the position, that because a parent, from love and natural affection, engages to give his son money, or a chattel, that sucha promise can be enforced at law.

Judgment for the defendant.