Mansfield v. Corbin

56 Mass. 151

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1848
• Status: Published

Opinion

Wilde, J.

It appears to the court, that the instructions to the jury in this case were too restrictive. The action is assumpsit on á promissory note, given by the defendant, for a debt due to the plaintiff from the defendant’s son, he being of full age. The jury were instructed, that if the note was given for the debt of the defendant’s son, it was without consideration, unless it was given with the knowledge, or at the request, of the son, or unless, when the note was given, the plaintiff did in fact discharge the debt due to him from the son. These instructions excluded from the consideration of the jury any evidence of a discharge of the debt afterwards, or of a promise to discharge it, or of a promise to delay to prosecute, or an actual delay; either of which, if proved, would be a sufficient consideration. Indeed, the slightest consideration would be sufficient. It is said, that it does not appear that any such evidence was given, there being no report of the evidence ; and in this respect the report is defective. But, from the instructions, we think it may be inferred, that they were intended to limit and restrict the evidence in the case as stated. It is not asserted by the defendant’s counsel, that there was not, in fact, any evidence of the plaintiff’s forbearance to sue the son, or of his receiving the note in discharge or payment of the debt. Under these circumstances, we think a new trial ought to be granted, although the case is brought up in a very defective form.

Exceptions sustained