Church, J.
In this case, the jury returned a verdict in favour of the plaintiff on the first, second and fourth counts of the declaration, and in favour of the defendant, on the third. And now the defendant moves in arrest of judgment, for the insufficiency of the counts upon which the verdict against him was rendered. Because,
[22]*22It is not alleged in either count, that this defendant was legally liable to the plaintiff upon the demand sought to be enforced against him, in the action which was withdrawn; and therefore, that no sufficient consideration for the defendant’s promise is shewn.
The mere forbearance of a claim or demand before suit brought, which is not in fact a legal demand, is not, of itself, a sufficient consideration to support a promise. But either the compromise of a doubtful claim, or the relinquishment of a pending suit, is a good consideration for a promise. Bidwell v. Catton, Hob. 216. Longridge & al. v. Dorville & al. 5 Barn. & Ald. 117. Thornton v. Fairlie, 8 Taun. 354. Union Bank of Georgetown v. Geary, 5 Peters 99. Pow. on Con. 346. 354. Chitty on Con. 9. 1 Sw. Dig. 190. The declaration, in this case, sets forth, as the consideration of the promise, a cause of action growing out of the non-payment of a draft or bill of exchange, drawn by the present defendant in favour of this plaintiff, for the sum of one hundred and fifty-eight dollars, and eighty cents, the prosecution of an action upon that claim, the disagreement of the jury in regard to its validity, and a withdrawal of that action, by the plaintiff, at the defendant’s request. In addition to this, a part of the consideration of the defendant’s promise, is alleged to be, a promise and undertaking of the plaintiff to execute and deliver to the defendant a discharge from all claims upon said bill of exchange. We cannot hesitate at all, in declaring that the consideration of the promise is well alleged in the declaration. The facts constituting the consideraton, are sufficient.
The defendant also moves for a new trial for several causes.
1. That parol evidence regarding the discharge was admitted. The execution and delivery of the discharge could only be proved by parol; and this was all that the plaintiff claimed ; but if he had claimed to prove its contents by parol, under the circumstances stated in the motion, there can be no doubt of its propriety. The defendant made no claim that the discharge was in his hands, and that he should have had notice to produce it: there was no proof nor legal presumption that it had ever been in the plaintiff’s possession, or in any other specified place, where, by search, it could have been found, after it had been delivered to the defendant, and [23]*23by him thrown away. It could only be considered, under these circumstances, as a lost paper.
2. That the testimony of the principal witness for the plaintiff did not conduce to prove the contract declared upon; and should, for this cause, have been rejected. A statement of the testimony of the witness upon this point, will sufficiently answer this objection. “He (the defendant) said he would give his note for one hundred dollars, payable in sixty days, and he be discharged. I (the witness) told him, I would consult Mr. Stoddard. I did so ; and Stoddard agreed to the arrangement ; and this I communicated to Mr. Mix, and he agreed to it.”
The objection to this witness as interested in the event of this cause, has no better foundation.
3. The defendant also objected to the testimony of R. B. Steele, on the ground that it disclosed a disqualifying interest in him. We cannot discover it. On the contrary, if the witness swore truly, he could have had none. His right to recover of this plaintiff did not depend upon the issue of this trial.
4. The defendant insists, that the motion discloses facts, from which it appears the plaintiff has no legal interest in this cause of action. We do not so construe the motion. The bill of exchange drawn by the defendant upon Charles Mix was payable to the plaintiff; and he was the holder of it, when it was returned unpaid. The plaintiff did not receive it for Steele’s benefit, but upon his own responsibility. The suit which was withdrawn, was instituted and prosecuted, by this plaintiff, at his own expense, in his own name ; and the promise of the defendant was made to the plaintiff Here we have, then, the entire consideration of the promise moving from the plaintiff alone, and the promise made to him alone. It is difficult to discover, if any legal interest existed in any body, that it could exist any where but in the plaintiff It was very earnestly claimed, at the trial, to be sure, that the facts appearing upon the motion showed that the plaintiff’s pretended right of action originated in a violation of the “ Act to prevent unlawful maintenance.” There is nothing to justify this charge. The facts upon which it is predicated, are, that the plaintiff was the attorney of Ralph B. Steele in the collection of a note against Charles Mix of the city of New-York; that Mix was sued, and his body arrested, and special bail [24]*24given for him’ this defendant; that judgment was render^ ed and execution issued against Charles Mix, who was not surrendered ; and the defendant thereby became charged as special bail. Under this state of things, the plaintiff, without the knowledge or direction of his client, and for the accommodation of the defendant alone, and at his request,, received the bill of exchange in question, and indorsed and applied the amount upon the execution against Charles Mix. This bill of exchange was returned unpaid ; and from these circumstances this'cause of action has grown. The bill of exchange was neither sold, nor purchased ; and if it had been, it would not have furnished any evidence of an intent to violate the aforesaid statute. A more innocent professional transaction than this, cannot well be conceived.
5. The defendant claimed also, that this action was prematurely commenced. The promise of the defendant upon which this action is brought, was, to execute his note to the plaintiff for one hundred dollars, payable in sixty days. Upon the defendant’s refusal to execute his note at all, this action was immediately commenced, and before the expiration of sixty days. The promise was, to execute a note of a certain tenor immediately, or within a reasonable t me. The defendant’s refusal to do this, was a breach of that promise, upon which a right of action immediately accrued. It is unlike the case of the sale of goods, &c. to be paid for, by note at a future day, in which it has been holden, that an action will not lie for the price of the goods until the time of credit has expired — an opinion very cautiously expressed at first. Cothay v. Murray, 1 Campb. 335. Dutton v. Solomonson, 3 Bos. & Pul. 582. Brooke v. White, 1 New Rep. 330. Mussen v. Price, 4 East 147. Hoskins & al. v. Duperoy, 9 East 498. Kelly v. Foster, 2 Binn. 4. Hanna v. Mills, 21 Wend. 90. Yale v. Coddington, 21 Wend. 175.
6.
Free access — add to your briefcase to read the full text and ask questions with AI
Church, J.
In this case, the jury returned a verdict in favour of the plaintiff on the first, second and fourth counts of the declaration, and in favour of the defendant, on the third. And now the defendant moves in arrest of judgment, for the insufficiency of the counts upon which the verdict against him was rendered. Because,
[22]*22It is not alleged in either count, that this defendant was legally liable to the plaintiff upon the demand sought to be enforced against him, in the action which was withdrawn; and therefore, that no sufficient consideration for the defendant’s promise is shewn.
The mere forbearance of a claim or demand before suit brought, which is not in fact a legal demand, is not, of itself, a sufficient consideration to support a promise. But either the compromise of a doubtful claim, or the relinquishment of a pending suit, is a good consideration for a promise. Bidwell v. Catton, Hob. 216. Longridge & al. v. Dorville & al. 5 Barn. & Ald. 117. Thornton v. Fairlie, 8 Taun. 354. Union Bank of Georgetown v. Geary, 5 Peters 99. Pow. on Con. 346. 354. Chitty on Con. 9. 1 Sw. Dig. 190. The declaration, in this case, sets forth, as the consideration of the promise, a cause of action growing out of the non-payment of a draft or bill of exchange, drawn by the present defendant in favour of this plaintiff, for the sum of one hundred and fifty-eight dollars, and eighty cents, the prosecution of an action upon that claim, the disagreement of the jury in regard to its validity, and a withdrawal of that action, by the plaintiff, at the defendant’s request. In addition to this, a part of the consideration of the defendant’s promise, is alleged to be, a promise and undertaking of the plaintiff to execute and deliver to the defendant a discharge from all claims upon said bill of exchange. We cannot hesitate at all, in declaring that the consideration of the promise is well alleged in the declaration. The facts constituting the consideraton, are sufficient.
The defendant also moves for a new trial for several causes.
1. That parol evidence regarding the discharge was admitted. The execution and delivery of the discharge could only be proved by parol; and this was all that the plaintiff claimed ; but if he had claimed to prove its contents by parol, under the circumstances stated in the motion, there can be no doubt of its propriety. The defendant made no claim that the discharge was in his hands, and that he should have had notice to produce it: there was no proof nor legal presumption that it had ever been in the plaintiff’s possession, or in any other specified place, where, by search, it could have been found, after it had been delivered to the defendant, and [23]*23by him thrown away. It could only be considered, under these circumstances, as a lost paper.
2. That the testimony of the principal witness for the plaintiff did not conduce to prove the contract declared upon; and should, for this cause, have been rejected. A statement of the testimony of the witness upon this point, will sufficiently answer this objection. “He (the defendant) said he would give his note for one hundred dollars, payable in sixty days, and he be discharged. I (the witness) told him, I would consult Mr. Stoddard. I did so ; and Stoddard agreed to the arrangement ; and this I communicated to Mr. Mix, and he agreed to it.”
The objection to this witness as interested in the event of this cause, has no better foundation.
3. The defendant also objected to the testimony of R. B. Steele, on the ground that it disclosed a disqualifying interest in him. We cannot discover it. On the contrary, if the witness swore truly, he could have had none. His right to recover of this plaintiff did not depend upon the issue of this trial.
4. The defendant insists, that the motion discloses facts, from which it appears the plaintiff has no legal interest in this cause of action. We do not so construe the motion. The bill of exchange drawn by the defendant upon Charles Mix was payable to the plaintiff; and he was the holder of it, when it was returned unpaid. The plaintiff did not receive it for Steele’s benefit, but upon his own responsibility. The suit which was withdrawn, was instituted and prosecuted, by this plaintiff, at his own expense, in his own name ; and the promise of the defendant was made to the plaintiff Here we have, then, the entire consideration of the promise moving from the plaintiff alone, and the promise made to him alone. It is difficult to discover, if any legal interest existed in any body, that it could exist any where but in the plaintiff It was very earnestly claimed, at the trial, to be sure, that the facts appearing upon the motion showed that the plaintiff’s pretended right of action originated in a violation of the “ Act to prevent unlawful maintenance.” There is nothing to justify this charge. The facts upon which it is predicated, are, that the plaintiff was the attorney of Ralph B. Steele in the collection of a note against Charles Mix of the city of New-York; that Mix was sued, and his body arrested, and special bail [24]*24given for him’ this defendant; that judgment was render^ ed and execution issued against Charles Mix, who was not surrendered ; and the defendant thereby became charged as special bail. Under this state of things, the plaintiff, without the knowledge or direction of his client, and for the accommodation of the defendant alone, and at his request,, received the bill of exchange in question, and indorsed and applied the amount upon the execution against Charles Mix. This bill of exchange was returned unpaid ; and from these circumstances this'cause of action has grown. The bill of exchange was neither sold, nor purchased ; and if it had been, it would not have furnished any evidence of an intent to violate the aforesaid statute. A more innocent professional transaction than this, cannot well be conceived.
5. The defendant claimed also, that this action was prematurely commenced. The promise of the defendant upon which this action is brought, was, to execute his note to the plaintiff for one hundred dollars, payable in sixty days. Upon the defendant’s refusal to execute his note at all, this action was immediately commenced, and before the expiration of sixty days. The promise was, to execute a note of a certain tenor immediately, or within a reasonable t me. The defendant’s refusal to do this, was a breach of that promise, upon which a right of action immediately accrued. It is unlike the case of the sale of goods, &c. to be paid for, by note at a future day, in which it has been holden, that an action will not lie for the price of the goods until the time of credit has expired — an opinion very cautiously expressed at first. Cothay v. Murray, 1 Campb. 335. Dutton v. Solomonson, 3 Bos. & Pul. 582. Brooke v. White, 1 New Rep. 330. Mussen v. Price, 4 East 147. Hoskins & al. v. Duperoy, 9 East 498. Kelly v. Foster, 2 Binn. 4. Hanna v. Mills, 21 Wend. 90. Yale v. Coddington, 21 Wend. 175.
6. Finally, the defendant insisted, that if this action could be sustained upon the express promise, before the expiration of the sixty days, which the note was to run; yet that nominal damages only could be recovered. And here again, we think the defendant mistaken. The plaintiff can have no other action than upon this special contract; and it is very obvious, that in some form of action, and at some time, he is entitled to recover the actual damage sustained, one hundred [25]*25dollars, which the defendant promised to pay. The special promise of the defendant to give his note, was as effectually - broken, when this action was commenced, as it was after the expiration of sixty days. And if the plaintiff recovers nominal damages now, we do not see but he will be debarred frorp a recovery of his actual damages hereafter; because if hb su^* again, he can only sue for the same breach of promise, in the same form of action, and in the same manner of declaring, as he is now doing. The second action would be for the same cause of action as the first, and must so appear to be from the record itself. Hanna v. Mills & al. 21 Wend. 90. Philips v. Berick, 16 Johns. Rep. 136.
We think the motion in arrest of judgment should be overruled, and the motion for a new trial denied.
The defendant claimed to recover his costs of the plaintiff, accruing upon the third count in the declaration ; the verdict upon that count having been in his favour.
Although different counts in a declaration are, in form, for distinct causes of action; yet in practice, it is well understood, that they are commonly for the same cause, and introduced generally to accommodate the declaration to the proof. It is not unfrequent, however, that distinct causes of action are intentionally included in the same declaration, by the aid of distinct counts. And when this is the case, and the court so understand it, as a matter of fact, if the defendant prevails upon any such count, he will be entitled to the costs which have accrued to him in defending against the distinct claim set up in that count. Such we understand to be the principle established in the case of Litchfield v. Farmington, 7 Con. Rep. 399; and such, we suppose, has been the general practice of the courts. In the present case, nothing appeared at the trial, nor does any thing appear upon this record, to show us, that the third count in this declaration was intended to enforce the recovery of any other demand than the one specially set forth in the other counts; and therefore, we think no costs should be taxed for the defendant, under that count.
In this opinion the other Judges concurred.
Motion in arrest overruled ;
New trial not to be granted;
Defendant not to be allowed costs.