Wilton v. Eaton

127 Mass. 174, 1879 Mass. LEXIS 45

Opinion

Gray, C. J.

The judge, before whom this case was tried without a jury, has found as a matter of fact that the surrender to the administratrix of the note of her intestate was the consideration for the note made by her to the plaintiff. The surrender of the former note, whether that note was at the time of the surrender capable or incapable of being enforced at law, was sufficient to constitute a consideration for the new note. Haigh v. Brooks, 10 A. & E. 309, 320, 334. Lawrence v. McCalmont, 2 How. 426, 452. Newhall v. Paige, 10 Gray, 366, 368. Kerr v. Lucas, 1 Allen, 279. Coggins v. Murphy, 121 Mass. 166. It is therefore unnecessary to consider whether the grounds of the decision in Wheaton v. Wilmarth, 13 Met. 422, are sound or applicable to this case.

In Williams v. Nichols, 10 Gray, 83, the ruling of the Court of Common Pleas, which was reversed by this court, was that the giving of a mere receipt, without proof that it was delivered or accepted as the consideration for the defendant’s promise, was, as matter of law, a sufficient consideration. That case is thus distinguished from this. Exceptions overrule i.