Wheeler v. Toof

2 Mich. N.P. 44

• Court: Circuit Court of the 36th Circuit of Michigan
• Decided: July 1, 1871
• Status: Published

Opinion

By the Court,

Biiown, J.

From the testimony in the case, the Court finds the following facts :

1. That the note in question lias not been altered since its execution.

2. That the note in question was given as a promise to pay $50, to assist the First Presbyterian Church of Decatur to pay its iudebtedness incurred and to be incurred in tbe construction of their church.

3. That the plaintiff at the time of taking the note, had advanced funds of his own to pay for labor and materials in the construction of the church, and that on taking such note he credited the church with the sum of $50.

While it is true that the words in the note relative to interest appear to be written in ink a shade darker than the body of the note, it does not appear different from that of the signature.

The plaintiff has not denied the execution of the note, as'required by the rule, to entitle himtoquestion its validity.

It is claimed on the part of the defendant that there was no consideration for the note — that if it was the understanding and agreement of the defendant that he was to pay money for a past indebtedness, and no additional obligation was incurred by reason of such promise or on the faith thereof, the promise would be but a ffidrewiidum pactum ; and in support.of this position the following authorities were cited: 1 Gr. on Ev., § 564; et. seq.; Sheldon vs. Hawes, 15 Mich., 517; Wilde vs. Armsby, 6 Cush., 314; 2 Par. on Con. (5th Ed.) 721, 722, note y; 1 Par. on Con., 453; Limerick Academy vs. Davis, 11 Mass., 112; 1 Comst., 581; 9 Mass., 252; 2 Pick., 578; Edw. on Notes and Dills, 324.

It was contended at the argument that the promise of the defendant made at the church was without consideration, and that therefore his subsequent promise embodied in the note to the-plaintiff, being made in lieu of the first promise, cannot be enforced; and the case in 5 Pick., 390, is relied upon in,support of the proposition.

The counsel for the defendant further insisted that at most the obligation incurred by the defendant was but a moral one, and that such obligations were not sufficient to support an express promise in writing, and the case of Mills vs. Wyman, 3 Pick., 207, is cited as authority.

A consideration and examination of the authorities upon the questions thus raised is full of interest. These authorities, are far from being uniform, and the grounds upon which the eases have been decided are so varied as to lead to some confusion, and unless critically examined many of them would tend to lead us far from correct principles. Some of the eases hold that a promise of one subscriber to pay money is a sufficient consideration for a similar promise by another, while others deny the force of subscriptions as mutual considerations. Concerning this latter class of cases our own Supreme Court in Underwood vs. Waldron, 12 Mich., 89, say: “The cases which have denied the force of subscriptions as mutual considerations, are usually cases where no payee is named or designated, or where the one-designated is either incapable of acting, or does not assume and is not bound to act.;” and the cases in 9, 11 and 14 Mass., are cited as cases of this character. Arid whore this difficulty has not existed it has been recognized repeatedly that it is a sufficient consideration that others were led to subscribe by the very subscription of the defendant. 5 Pick., 506; 9 Cush., 537; 4 N. H. 533; 6 N. H., 164; 24 Vt., 189; 6 Pick., 427.

In the case referred to in 12 Mich., Judge Campbell says, that “ objections for the want of parties are frequently classed with objections to the consideration; and parties have been discharged upon grounds by no moans clear or intelligible. Any extended criticism of the cases would be more curious than profitable, as the whole subject must be determined bytherules governing ordinary agreements.” If we are to apply in this class of cases the same tests that we do in aii ordinary agreement, I can see no difficulty. If in the. examination of the various authorities upon this question we bear in mind the distinction between the contract and the consideration,.and draw clearly the line between the different forms of promises, wo shall be able to avoid the confusion into which we shotdd otherwise be drawn by a contemplation of the eases referred to. •

Is a church valuable in a legal sense ? Is the citizen benefited, by these promoters of civilization ? by the institutions that tend to make him secure in his person and his property ? In the-case of Underwood vs. Waldron, the learned Judge says : “ We cannot hesitate to hold that a school or church, or other similar institution, which we are anxious to have built, and promise to pay for is “ valuable” to them in a legal sense. In most cases there is a pecuniary value in the enhanced prices of neighboring property. But, apart from this^ any worthy purpose for which men generally are willing to expend money, must be regarded by courts as worth money, when it is promised. We know of no safer tost to apply to human transactions.”

To the same effect,see 6 Mass.,42; 14 Id, 172; 15 Mihc.,237; 6 Pick.,431; 12 Pick,129; 7 N. Y., 349. Most of these cases hold that a moral obligation is a sufficient consideration' to support an express promiso.

It was urged at the «argument that the1 note was, if it had-any validity, the property of the Church, and that therefore Wheeler' could not recover upon it. It would be a sufficient answer to this objection that one who holds paper payable to bearer, for another, may sue in his own name and his want of interest is no objection. 7. Cowen, 174; 11 Johnson, 52; 5 Wend., 257; 3 Johnson's Cases, 264; and it has even been held that the fact that the holder • and owner of a negotiable note prosecutes it in the. name of a stranger, without his knowledge or consent,.is no bar to a recovery. 15 Wend. 640; 25 Id., 411.

Upon this question of consideration the distinction between inducement and consideration must not be overlooked. I It is not necessary that the consideration should go to the promisor. | A consideration to a third party may be an inducement to a person to give,his note; and in such case the promise is just as binding as though the promisor had received the benefit. A is indebted to B; C to discharge B,s indebtedness gives A'his own pote, and A thereupon discharges-B. Here the consideration was for the benefit of B, and was an inducement for C's promise.

In the case before us, the Church Society had incurred an indebtedness and subsequently made further' expenditures. To assist the Society in the payment of its obligations and to enable it to complete its church, the defendant promised to. pay $50. The Society was indebted to the plaintiff for moneys’ advanced to him. The defendant gave his note to the plaintiff, and the plaintiff credited the Chur'ch Society with $50. The Society received the consideration. With this view of the case it Will be seen that it is of but little consequence Whether, as a matter of fact, the defendanthas ever availed himself of the benefits he might receive from the civilizing and enlightening influences of the Church.

Let judgment be entered for the plaintiff for the sum -of '$60 • 90, that being the amount of the note with interest