The opinion of the court was delivered by
Royce, J.
This case was heard on the report of a referee, and the court below rendered judgment for the plaintiff, on the report, for the smallest sum named, to which both parties excepted. The facts appear fully from the report, which is made a part of the exceptions.
The first question in the consideration of the case, and the most important in the view we take of it, is as to the delivery^ of the note in suit. Benjamin Giddings, defendant’s intestate, and his brother Joseph, met in 1867, and in conversation Benjamin admitted that he considered he ought to make good to Joseph, or to those who would have his estate, his (Joseph’s) share in their mother’s dower estate, which had never been claimed by Joseph, and on which the Statute of Limitations had then run, and which the referee finds was worth, on the first of January, 1866, “ as near as can now be ascertained,” $375.20. In consideration of this, and certain good but not valuable considerations, Benjamin afterwards executed three promissory notes in writing for the sum of ,$500 each, payable one to each of Joseph’s three sons respectively, one year after the maker’s death, one of which notes is declared upon as the cause of action in this suit. He intended, as the referee finds, to leave these notes in the hands of some third person, subject to his own control, to be delivered after his death, if he should not retake them or direct otherwise. He informed Joseph and each of the payees of his intention, as above, and they all assented to the arrangement. After that he put the notes into a letter envelope and sealed it up, and wrote on it this [233] address : “ Henry F. Giddings, of Ellisburg, Jefferson County, N. Y., and others, in care of Barnes Frisbie, Esq., of Poultney,” and delivered it to Barnes Frisbie of Poultney, at Poultney, with directions about the custody of it, which Frisbie, as the referee finds, endorsed correctly, in substance, on a wrapper that he put around it, in these words : “ Letter left in my care by Benj. Giddings, to be handed to Mr. Giddings if he calls for it; otherwise not to be opened in his lifetime.” Benjamin did not retake the package ; and after his death in 1873, Frisbie opened it, and delivered the notes respectively to the payees named in them — this plaintiff and Henry F. and Benjamin F. Giddings, his brothers.
In Belden v. Carter, 4 Day, 66, A., having signed, sealed, and acknowledged a deed of certain lands to B., gave the deed, in the absence of B. to C., saying: “Take this deed and keep it; if I never call for it, deliver it to B. after my death ; if I call for it, deliver it up to me.” A. died without retaking the deed, and C. delivered it to B. Held, that the delivery became complete and took relation back to the first delivery. In Worth v. Case, 42 N. Y., 362, a note remained in the hands of the payee until the death of the maker, being received and held by him subject to the condition that it should be returned to the maker whenever he .might wish it during his lifetime ; and the note was held valid. And in Foster v. Mansfield, 3 Met. 412, it is laid down that if a grantor directs and intends that his deed from and after its execution shall be retained by the scrivener until after the grantor’s death and then delivered to the grantee, all of which if afterwards done, the estate vests in the grantee from the time of the execution of the deed. On the authority of these cases, and the principles of law upon which they were decided, it seems clear that had Benjamin handed the notes to Frisbie with specific instructions, as in Belden v. Carter, supra, the delivery would have been sufficient, and on the death of the maker, with the option of recall unexercised, and the actual receipt of the notes by the payees, would have become complete and taken effect back by relation to the time of the deposit of the notes with Frisbie. Were the acts and words of Benjamin and the understanding and treatment thereof by all the parties, as shown by the referee’s [234] findings, equivalent to such a specific direction ? Upon the part of the defendant it is contended that the acts of the maker simply constituted Erisbie a depositary of the notes for him, with no authority to deliver them to the payees in any event; and that whatever-agency he might have been invested with to deliver them upon further instructions was revoked by the death of Benjamin. In order to accept this construction, it is necessary to reject as meaningless the direction written by Benjamin upon the envelope containing the notes, and to declare unjustifiable the acts of Erisbie based upon his understanding of the-meaning of that direction. The policy of the law is to give effect to all the acts and words of parties, when it can be done without repugnancy.
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The opinion of the court was delivered by
Royce, J.
This case was heard on the report of a referee, and the court below rendered judgment for the plaintiff, on the report, for the smallest sum named, to which both parties excepted. The facts appear fully from the report, which is made a part of the exceptions.
The first question in the consideration of the case, and the most important in the view we take of it, is as to the delivery^ of the note in suit. Benjamin Giddings, defendant’s intestate, and his brother Joseph, met in 1867, and in conversation Benjamin admitted that he considered he ought to make good to Joseph, or to those who would have his estate, his (Joseph’s) share in their mother’s dower estate, which had never been claimed by Joseph, and on which the Statute of Limitations had then run, and which the referee finds was worth, on the first of January, 1866, “ as near as can now be ascertained,” $375.20. In consideration of this, and certain good but not valuable considerations, Benjamin afterwards executed three promissory notes in writing for the sum of ,$500 each, payable one to each of Joseph’s three sons respectively, one year after the maker’s death, one of which notes is declared upon as the cause of action in this suit. He intended, as the referee finds, to leave these notes in the hands of some third person, subject to his own control, to be delivered after his death, if he should not retake them or direct otherwise. He informed Joseph and each of the payees of his intention, as above, and they all assented to the arrangement. After that he put the notes into a letter envelope and sealed it up, and wrote on it this [233] address : “ Henry F. Giddings, of Ellisburg, Jefferson County, N. Y., and others, in care of Barnes Frisbie, Esq., of Poultney,” and delivered it to Barnes Frisbie of Poultney, at Poultney, with directions about the custody of it, which Frisbie, as the referee finds, endorsed correctly, in substance, on a wrapper that he put around it, in these words : “ Letter left in my care by Benj. Giddings, to be handed to Mr. Giddings if he calls for it; otherwise not to be opened in his lifetime.” Benjamin did not retake the package ; and after his death in 1873, Frisbie opened it, and delivered the notes respectively to the payees named in them — this plaintiff and Henry F. and Benjamin F. Giddings, his brothers.
In Belden v. Carter, 4 Day, 66, A., having signed, sealed, and acknowledged a deed of certain lands to B., gave the deed, in the absence of B. to C., saying: “Take this deed and keep it; if I never call for it, deliver it to B. after my death ; if I call for it, deliver it up to me.” A. died without retaking the deed, and C. delivered it to B. Held, that the delivery became complete and took relation back to the first delivery. In Worth v. Case, 42 N. Y., 362, a note remained in the hands of the payee until the death of the maker, being received and held by him subject to the condition that it should be returned to the maker whenever he .might wish it during his lifetime ; and the note was held valid. And in Foster v. Mansfield, 3 Met. 412, it is laid down that if a grantor directs and intends that his deed from and after its execution shall be retained by the scrivener until after the grantor’s death and then delivered to the grantee, all of which if afterwards done, the estate vests in the grantee from the time of the execution of the deed. On the authority of these cases, and the principles of law upon which they were decided, it seems clear that had Benjamin handed the notes to Frisbie with specific instructions, as in Belden v. Carter, supra, the delivery would have been sufficient, and on the death of the maker, with the option of recall unexercised, and the actual receipt of the notes by the payees, would have become complete and taken effect back by relation to the time of the deposit of the notes with Frisbie. Were the acts and words of Benjamin and the understanding and treatment thereof by all the parties, as shown by the referee’s [234] findings, equivalent to such a specific direction ? Upon the part of the defendant it is contended that the acts of the maker simply constituted Erisbie a depositary of the notes for him, with no authority to deliver them to the payees in any event; and that whatever-agency he might have been invested with to deliver them upon further instructions was revoked by the death of Benjamin. In order to accept this construction, it is necessary to reject as meaningless the direction written by Benjamin upon the envelope containing the notes, and to declare unjustifiable the acts of Erisbie based upon his understanding of the-meaning of that direction. The policy of the law is to give effect to all the acts and words of parties, when it can be done without repugnancy.
It is an affair of daily occurrence that notes, deeds, contracts, and other written instruments, as well as personal property of every description, are placed in the hands of common carriers, and often of private carriers, by makers and consignors, with no instructions concerning their delivery, beyond a direction upon the outside wrapper in terms precisely analogous to those used in the address written upon the envelope handed to Erisbie by Benjamin Giddings. Such delivery has universally been held to be a delivery to the consignee named in such address — Bull v. Sibbs, 8 T. R. 327; Biggs v. Lawrence, 3 T. R. 454, — though the particular carrier be not named by the consignee. Dutton v. Solomonson, 3 B. & P. 582; Jacobs v. Nelson, 3 Taunt. 423. And although the completion of the delivery is defeasible by the consignor by the exercise of his right of stoppage in transitu, yet upon delivery to the carrier, the property instantly vests in the consignee, and when the actual delivery to him is fully completed it takes relation back. This doctrine is based upon the theory that the consignee, either expressly or by implication, constitutes the carrier his agent to receive the property for him. In the case at bar the payees of the three notes in terms assented to their delivery to some third person by the maker, who should hold them subject to an option of recall by the maker during his life, and then complete the delivery by handing them over to the payees ; also that the selection of such third person should be left to the maker. In pursuance of this arrangement Benjamin selected Frisbie as such [235] third person, and handed the notes over to him with oral directions concerning the option of recall, and written directions, in the form of an address upon the envelope, in precisely the terms ordinarily used in- delivering papers or goods through the agency of a carrier, for their delivery to the payees, in case ho should die with the option of recall uuexercised. From this direction Frisbie, as evinced by his acts, understood,'as any intelligent person would have done, that if Giddings died without reclaiming the packet, he was to deliver it — not to Giddings’s personal representatives, in the absence of any instructions written or oral to that effect — but to the parties to whom it was so addressed, viz: “ Henry F. Giddings and others.” Benjamin did die without calling for the packet, and thereupon Frisbie, for the purpose of ascertaining who were meant by the word “ others,” assumed to open it, and delivered the notes to the several payees named therein. Had Frisbie been on the eve of a journey to Ellisburg, and had Benjamin handed him this packet without a word, the legal construction of the act would have been: “ Deliver this package to the parties to whom it is addressed unless I exercise the right I possess by implication to direct you otherwise before the commission is executed.” In this case, the right to countermand the direction upon the envelope was extended by oral reservation to cover the whole period of Benjamin’s -life; but the-principle remains the same, and the delivery, having been completed, will not be disturbed. Thex-e was a perfect consonance in the proved intentions of the parties and the manner in which they were carried out. The precise intention of Benjamin with regard to the notes as found to have been expressed by him to his brother and three nephews was gathered by Frisbie from the oral and written directions of Beixjamin to him, and from no other source, and carried out by him to the letter. We find in this whole tx-ansaction all the elements which in law are held to constitute a valid delivex-y through an agent — that Frisbie received the note in suit as agent for the payee, subject to an option of recall by the maker, in like manner as a carrier receives goods as the agent of the consignee,- subject to the option of the consignor to stop them in transitu,’held it as trustee for the payee, and, having completed the [236] delivery in accordance with the direction upon the envelope and the intention of all the parties, it took effect back by relation to the original deposit with him, and constituted a full and complete delivery on that date.
The defendant seeks to avoid the note upon the further ground of want or inadequacy of consideration. The case shows that Joseph',originally had a legally enforceable claim for his distributive share in his mother’s dower estate, that said claim was never presented nor enforced by him, and that the interest was possessed and enjoyed with his tacit consent and permission, by Benjamin. “ The defendant’s having received a benefit by the permission of the plaintiff, is a good consideration.” Davis v. Morgan, 6 D. & R. 42; 4 B. & C. 8. So also is an outlawed legal claim. Hawley v. Farrar, 1 Vt. 420; Eastwood v. Kenyon, 11 Ad. & E. 438; Lee v. Muggridge, 5 Taunt. 37 ; Smith v. Jameson, 5 T. R. 603; Esp. N. P. 116; Bull. N. P. 147; Barlow v. Smith, 4 Vt. 139, 144; Glass v. Beach, 5 Vt. 172; Boothe v. Fitzpatrick, 36 Vt. 681. That the consideration for the note was a certain specific outlawed claim, and less in amount than the face of the note, is immaterial in the absence of fraud or mistake upon the part of either of the contracting parties. In Oakley v. Boorman, it is said: A promise or obligation cannot be defeated in whole or in -part, on the ground of the inadequacy of the compensation received for the obligation incurred — the slightest consideration is sufficient to support the most onerous obligation ; the meaning of the rule that you may impeach the consideration is only that you may show fraud, mistake, or lillegality in its concoction, or non-performance of the stipulations of the agreement on the part of the promisee. 21 Wend. 588. Contracts entered into by parties knowing their rights, though upon inadequate consideration, will not be set aside in law. Harrington v. Wells, 12 Vt. 505; Paige v. Ripley, 12 Vt. 289; nor in equity — Stephens v. Bateman, 1 Bro. C. C. 22; Griffith v. Spratley, 1 Cox, 383; Collin v. Brown, 1 Cox, 428. Family agreements are especially favored in this respect. Stockley v. Stockley, 1 Ves. & B. 23; being based upon good as well as valuable considerations. Persse v. Persse, 7 Cl. & F. 279; 1 West, 110.
[237] The defendant claims that if any recovery can be had in this action it should be only for the amount found by the referee to be the actual value at the time the note was given of one third of Joseph’s share of the dower interest. It seems to be well settled that to entitle a defendant to an abatement from the sum for which the note was given, in a case of this kind, two things at least must concur, viz., fraud upon the defendant in procuring the note for the sum named, or, at least, a failure of the consideration from the understanding of the parties at the time, and an ability by computation to fix the amount to be deducted. Walker v. Smith, 2 Vt. 539; Stone v. Peake, 16 Vt. 213; Harrington v. Wells, 12 Vt. 505; Harrington v. Lee, 33 Vt. 249. Both these elements are lacking in the case at bar. No fraud is alleged and no misunderstanding about or failure in the consideration. And it is not found with certainty what the actual value of Joseph’s share in the dower estate was at the time the notes were given ; nor is it found affirmatively that in the settlement the fifty years’ use and the purchase-money of Joseph’s distributive share of the farm, for which Joseph once had a legal claim against the estate of his father, and which inured, at least partially, to the benefit of Benjamin, were not taken into consideration as forming a part of the consideration of the notes. Upon such facts as these, it would be extremely hazardous, to say the least, to undertake to reduce written contracts or promises to a quantum valebat.
Judgment reversed, and judgment for plaintiff on the report for the larger sum named, with interest and costs ; to be certified to the Probate Court.