Rice v. Morris

4 Whart. 249, 1839 Pa. LEXIS 204

• Court: Supreme Court of Pennsylvania
• Decided: February 16, 1839
• Status: Published

Opinion

'The opinion of the Court was delivered by

.Kennedy, J. —

The promise set forth in the affidavit of defence filed by the defendant in the Court below, does not appear to have been made by the plaintiff upon a consideration sufficient in law to support it; and, therefore, though made, cannot be considered binding. It is what the law terms a nudum factum. For aught that appears in the affidavit, the amount of the note upon which the suit is founded, was justly due and owing to the plaintiff below, by the defendant: notwithstanding, it may be as the latter has sworn, that he derived no benefit from it.. But his friend did, to whom he lent his name and his credit, that he might obtain the amount of it in money from the plaintiff; so that the plaintiff having been induced by the defendant below, upon his faith and credit, to part with his money, the latter is as much bound in conscience, equity, and law, to repay the former, as if he had received the money from the plaintiff himself, It is not alleged that the plaintiff did not advance the full amount of the note to the person for whose accommodation the defendant below originally put his name on the paper. In the absence of such obligation, it is but fair to presume, that the plaintiff below was money out of pocket, when the defendant gave the note in question, to the amount of it, through the interference of the latter for his friend, who therefore in justice had no right to claim any deduction; and having given his note for nothing more than what he was equitably as well as legally bound to pay the plaintiff, the mere promise of the latter to release him upon his paying a less sum, then or before the day mentioned in the note for its payment, cannot be pleaded in discharge of the note; it is but an accord, at most, which, without satisfaction cannot avail. — The judgment is therefore affirmed.

Judgment affirmed.