Smith v. Ware

13 Johns. 257

• Court: New York Supreme Court
• Decided: May 15, 1816
• Status: Published

Opinion

Spencer, J.,

delivered the opinion of the court. It cannot be pretended that the defendant was. under any moral obligation, to pay for the deficiency in the quantity of land sold and conveyed to the plaintiff. There is no pretence of any fraud in relation to the sale, and the deed is very explicit in its terms. The land granted was truly described, and it is evident, from the deed, that the parties do not contract, in reference to any specific quantity of land; for the deed states, that the tract is_ supposed to contain 93» acres. There would be no mutuality between the parties, if we were to say, that the defendant was morally Bound to make up any deficient quantity, because it is very certain'that, had'there been an overplus, the plaintiff could not have been compelled to pay, for the excess. We have q right to infer, that the deed contains no covenant of warranty; the defendant, therefore, sold, and the plaintiff agreed to take the, land, under a conveyance containing no stipulations, either aa to quantity or title. Under these circumstances, a promise to pay for any of the land included in the surveyor-general’s survey was without a consideration.

There is much nice learning in the books, upon the point of moral obligation, and as to what is, or is not, a sufficient consideration to uphold a promise. The result of all the cases on, this head is, I think, admirably summed up in a note to 3 Bos. & Pull. 249. “ An express promise, therefore, as it should seem, can only revive a precedent good consideration, which might have been enforced at law, through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action,, if the obligation on which it is founded never could have been enforced', at law, though not barred by any legal maxim or statute provision.”

The judgment, in this case, must be affirmed.

Judgment affirmed,