Saxton v. Johnson

10 Johns. 418

• Court: New York Supreme Court
• Decided: October 15, 1813
• Status: Published

Opinion

Per Curiam.

The words for value received, in the first count in the declaration, were used and intended for a description of the note declared on; and not as an averment inserted by the pleader. The precedents of declarations on promissory notes are all in that way; and no counsel on the part of thé defendant would have supposed that these words were inserted as an averment of value ; and if he had demurred in consequence of a defective averment of the consideration, the court, no doubt, would have considered the words as part of the note. There was, thei,, a variance between the instrument declared on, and the one given in evidence, and the plaintitTh, at the trial, failed in the requisite evidence in support of their first count.

The next question is, whether the note was admissible in evidence under the money count.

If the note had contained, on the face of it, an admission of a consideration, or value received, it might, perhaps, have been admitted, but it had none; and as it was not a note within the statute, but a special contract, it required a consideration to be stated or averred. To give the note in evidence, without any consideration averred, or any consideration appearing on the face of it, would be taking the defendant by surprise, without giving him due . opportunity to contest the consideration, which might have been Set up at the trial.

The motion to set aside the nonsuit' is denied.

Motion denied.