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JOHN SCHWEIDER v. GEORGE LANG.

MINNESOTA SUPREME COURT, July 3, 1882.

[Reported in 29 Minnesota, 254.] BERRY, J. On September 27, 1881, defendant, as payee, holding plaintiff's promissory note, upon which there was an unpaid balance of $1,850, falling due November 10, 1882, with interest to accrue, they agreed as follows: Defendant agreed to accept $1,750 in full satisfaction of the balance of principal and interest called for by the note; $150 to be paid by plaintiff within one week, and $1,600 within two weeks from said September 27; the note to be thereupon delivered up, and a mortgage securing the same to be cancelled. Plaintiff agreed to raise the $1,750 and pay the same to defendant as above specified. It was subsequently mutually agreed that defendant should call upon plaintiff at his residence, within a week from September 27, to receive the $150 payment, plaintiff to have the same there in readiness. Plaintiff had and kept the $150 in readiness during the week; but defendant failed to call for it at any time, and plaintiff was unable to find him during the week mentioned. Within two weeks from September 27, plaintiff, after much expense and trouble, procured the sum of $1,600, and on October 10, 1881, duly tendered the sum of $1,750 to the defendant in fulfilment of his (plaintiff's) agreement, and requested defendant to fulfil on bis part. Defendant refused to receive the money or to perform his part of the agreement, having on October 1, without plaintiff's knowledge, sold and transferred the note and mortgage to a third party, to whom plaintiff became thereby bound to pay the full unpaid amount called for by the note. Plaintiff brings this action for damages for defendant's breach of contract.

The agreement between the parties was not for the sale of the note and mortgage, but one by which the maker of these instruments was to be discharged from liability thereon by the payee. The agreement is, therefore, not within the statute of frauds, so as to be required to be in writing. The agreement is what is known as an accord executory; that is to say, it is an agreement upon the sum to be paid and received at a future day in satisfaction of the note. If the accord bad been executed, there would have been a satisfaction extinguishing the note, the case being taken out of the rule by which payment of a part is held insufficient to satisfy the whole of a liquidated indebtedness by the fact that the payment was to be made before the indebtedness fell due. Sonnenberg v. Riedel, 16 Minn. 83; Brooks v. White, 2 Met. 283.

The case is, then, one of a promise on the part of the plaintiff to do something of advantage in law to the defendant, and on the part of the defendant to do something of advantage in law to the plaintiff a case of mutual promises, one of which is the consideration of the other. The agreement was valid and binding upon both parties.

The plaintiff has duly offered to perform on his part. The defendant
has refused to accept the proffered performance, as also to perform
on his part at plaintiff's request, and has moreover disabled himself
from performing by disposing of the note. The plaintiff is, there-
fore, in accordance with the general rule which gives damages for
breach of contract, entitled to recover the damages which have re-
sulted to him from this breach by defendant. Billings v. Vander-
beck, 23 Barb. 546; Scott v. Frink, 53 Barb. 533; Very v. Levy, 13
How. 345.

Order affirmed.

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stante decline of what he RIGGS v. BULLINGHAM. Insiderataan. Jestecuted

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IN THE QUEEN'S BENCH, MICHAELMAS TERM, 1599.

(Reported in Croke Elizabeth, 715.]

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ASSUMPSIT. Whereas he was seised in fee of the advowson of Beck ingham, in the county of Lincoln ; in consideration that he at the defendant's request, by his deed, dedisset et concessisset to the defendant the first and next avoidance of the said church, the defendant, 22 August, 37 Eliz., assumed to pay to the plaintiff 1001., &c. Upon non assumpsit pleaded, it was found for the plaintiff, and damages assessed to an 100. And after verdict it was moved in arrest of judgment that this consideration is past, and therefore not sufficient to ground an assumpsit; for there is not any time of the grant alleged ; and it might have been divers years before the assumpsit made; and being a thing executed and past, no assumpsit afterwards can be good : and in proof thereof Dyer, 272, Hunt v. Bate was cited. But all the Court resolved to the contrary; for the grant being made at his request, it is a sufficient consideration, although it were divers years before ; especially being to the defendant bimself, the consideration shall be taken to continue. But if the grant had been to a stranger, and not at the defendant's request, it had peradventure been otherwise. Wherefore it was adjudged for the plaintiff.

BOSDEN V. SIR JOHN THINNE.

LT THE KING's BENCH, MICHAELMAS TERM, 1608.

(Reported in Yelverton, 40.)

The plaintiff declared, quod cum ad specialem instantiam of the defend ant, he had procured credit for one Flud for two pipes of wine amount

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ing to 511., and Flud, super credentiam and per

medium of the plainud at the request of the defendant, emisset of one Roberts two pipes of wine for 511., and superinde the plaintiff with Flud entered into bond of 1001. to Roberts for payment of the said 51l. at a day to come, which was not paid at the day; and thereupon Roberts sued the plaintiff upon the bond, and recovered, and had a capias against him, whereby he fuit coactus to pay Roberts 671., de solutione of which 671. causa præallegata he notified to the defendant, who in consideratione præmissorum promised to pay the plaintiff the 671. at Michaelmas; and showed the failure of payment of the 671. at the day, &c. And upon non assumpsit pleaded, it was found against the defendant. And Yelverton moved in arrest of judgment, that the action upon the matter shown does not lie, because the consideration was past and executed before the promise, and the defendant had no profit by it, but all the benefit was to Flud, a stranger; like the case 10 Eliz., Dy. 272, where J. S. was bail for the servant upon an arrest, and signified all to the master after the bail entered into, who promised to save him harmless; and although the bail was condemned, yet no assumpsit lay against the master, because the consideration was past before the pronrise : and it seems that upon the first request only to give credit to Flud for two pipes of wine, no assumpsit lies ; for a bare request does not imply any promise ; as if I say to a merchant, I pray trust J. S. with 1001., and he does so, this is of his own head, and he shall not charge me, unless I say I will see you paid or the like. And it seems likewise that the promise shall not have relation to the first request of giving credit to Flud, because the entreaty for the credit was but for two pipes of wine amounting to 511., and the promise is for 671., and so they differ in the sums; as if I request J. S. to enter into bond for J. D. for 101., and I will see him paid ; now if J. S. enters into bond of 201. for the payment of 101. for J. D., which 201. is recovered against him, he shall not charge me on my promise but 101. But non allocatur per FENNER, Gawdy, and POPHAM; for although upon the first request only assumpsit does not lie, yet the promise coming after shall have reference to the first request; and although the request was but for two pipes of wine amounting to 511., that Flud might have credit for that; yet when Roberts, who sold the wine, would not take (as appears) security but by bond of 1001. for payment of 511., and all this matter is signified afterwards to the de fendant, who agrees to it, and promises to pay the 671., this shall charge him ; because it has its essence and commencement from the first request made by the defendant. As (per Gawdy) if I request one to marry my cousin, who does so, and afterwards tells me of it, and thereupon I promise him 1001., this is a good promise to charge me, although the marriage was past, which is the consideration ; because now the promise shall have reference to the request, which was before the marriage. Vide this case, Dy. 272 b. The same law (by him) if I entreat one to be bail for my servant, and he thereupon becomes bail, and is condemned, and afterwards tells me of it, and I promise him to save

him harmless, it is good, and he shall recover his damage in toto. Wherefore judgment was given for the plaintiff. But YELVERTON, J., was contra clearly.!

ROSCORLA 0. THOMAS.

IN THE QUEEN'S BENCH, May 30, 1842.

(Reported in 3 Queen's Bench Reports, 234,)

ASSUMPSIT. The declaration stated that, whereas heretofore, to wit, &c., in consideration that plaintiff at the request of defendant had bought of defendant a certain horse, at and for a certain price, &c., to wit, &c., defendant promised plaintiff that the horse did not exceed five years old, and was sound, &c., and free from vice; nevertheless defendant did not perform or regard his said promise, but thereby deceived and defrauded plaintiff in this, to wit, that the said horse at the time of the making of the said promise was not free from vice; but, on the contrary thereof, was then very vicious, restive, ungovernable, and ferocious ; whereby, &c.

Pleas. 1. Non assumpsit. Issue thereon.

2. That the horse, at the time of the supposed promise, was free from vice, and was not vicious, restive, ungovernable, or ferocious, in manner, &c.; conclusion to the country. Issue thereon.

On the trial, before Wightman, J., at the Cornwall Spring Assizes, 1841, a verdict was found for the plaintiff on both the above issues. In Easter Term, 1841, Bompas, Serjt., obtained a rule nisi for arresting the judgment on the first count. In last Term

Erle and Butt sbewed cause. The objection is, that the first count states only a nudum pactum. But there is an executed consideration, which with a request will support a promise. Now the request need not be express ; wherever the law will raise a promise, a request by the party promising will be implied; note (c) to Osborne v. Rogers. Payne v. Wilson was the converse of the present case: there a consideration, which in its form was executed, was declared on as executory; and this was held to be no variance, because in reality the consideration was continuing. Here the declaration states an executed consideration in form; but it is practically executory because the sale and warranty would be coincident. In Thornton v. Jenyns: the declaration charged that, in consideration that plaintiff had promised to defendant, defendant then promised plaintiff. It was objected that this was an executed consideration without a request, which was insufficient where the law would not raise a promise ; and Brown v. Crumpe was cited ; but the

1 Lampleigh v. Brathwait, Hobart, 105, and other decisions, acc. See Langdell Summary of Contracts, SS 92-94. 2 1 Wms Saund. 264 a.

3 1 Man. & G. 166.

4 1 Marsh. 567.

1

2

.

Court held that the two promises might be considered as simultaneous,
and that the objection therefore could not be sustained.'
Bompas, Serjt., and Slade, contra. The warranty ought to be given

.
at the time of the sale: if made after, it is without consideration. 3
Blackst. Com. 166 ; Com. Dig., Action upon the Case for a Deceipt
(A. 11); Roswel v. Vaughan, Pope v. Lewyns. Thornton v. Jenyns
was a case of mutual promises, which can never literally be made at the
same moment: here the declaration definitely lays the perfect sale as
antecedent to and distinct from the warranty. And the warranty is a
matter not implied by the law upon a sale. Parkinson v Lee. Ever
an express promise without a legal consideration is invalid. Collins v.
Godefroy. In Hopkins v. Logan there was an executed consideration
from which a promise to pay on request would have arisen ; and it was
holden that this did not support a promise to pay on a future day named.
[PATTESON, J., referred to Hunt v. Bate, as cited in Eastwood v. Ken-
yon, and to Lampleigh v. Brathwait.]

Cur. adv. vult.

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LORD DENMAN, C. J., in twis Term (May 30) delivered the judgment of the Court.

This was an action of assumpsit for breach of warranty of the soundness of a horse. The first count of the declaration, upon which alone the question arises, stated that, in consideration that the plaintiff at the request of the defendant had bought of the defendant a horse for the sum of 301., the defendant promised that it was sound and free from vice. And it was objected, in arrest of judgment, that the precedent executed consideration was insufficient to support the subsequent promise. And we are of opinion that the objection must prevail.

It may be taken as a general rule, subject to exceptions not applica. ble to this case, that the promise must be coëxtensive with the consideration. In the present case, the only promise that would result from the consideration as stated, and be coëxtensive with it, would be to deliver the horse upon request. The precedent sale without a warranty, though at the request of the defendant, imposes no other duty or obligation upon him. It is clear therefore that the consideration stated would not raise an implied promise by the defendant that the horse was sound or free from vice.

But the promise in the present case must be taken to be, as in fact it was, express; and the question is, whether that fact will warrant the extension of the promise beyond that which would be implied by law; and whether the consideration, though insufficient to raise an implied promise, will nevertheless support an express one.

And we think that it will not.

The cases in which it has been held that, under certain circumstances, a consideration insufficient to raise an implied promise will nevertheless

1 It was also argued that the warranty might here, after verdict, be taken to be coincident with the sale: to which it was answered that if it were so, the evidence negatived the declaration. 2 Cro. Jac. 196.

8 Cro. Jac. 630. 4 2 East. 314.

6 1 B. & Ad. 950.

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