Beers v. Culver — 1 Hill & Den. 589

Majority

p. 589

Beers vs. Culver.

Headnote

Where A. made and lent to B. a note, expressly to enable the latter to borrow money from a particular person, and, instead of using it for that purpose, B. delivered it to C. as collateral security for a previous debt, C. taking it with knowledge of the circumstances under which it was made; held, that the note was not an available security in C.’s hands.

And C. having transferred the note to D., (who also knew the circumstances under which it was given,) upon a promise by the latter to pay the debt of C. against B.; held, that the promise was without consideration, and therefore void.

A plaintiff who seeks to recover upon a promise to pay the debt of a third person, must declare specially, and cannot avail himself of it under the common counts.

Motíon to set aside the report of a referee. Stephen Fessenden, on the 9th of November, 1837, made his note dated September 2, 1837, for $1440, payable to William Bradley, jr. or bearer, one year after date, and lent it to Bradley, for the purpose of enabling him to raise money on it from one Wood—if the money was not obtained, the note was to be returned to Fessenden. No money was obtained on the note. Bradley being indebted to the plaintiff in about the sum of $120, delivered him the note as collateral security for the debt—telling the plaintiff at the time, that the note had been made to raise money. The defendant also had a debt against Bradley, and in consideration that the plaintiff would let him have the note of Fessenden, promised to pay the plaintiff the amount of his debt against Bradley. The defendant knew at the time for what purpose the note had been made. The plaintiff claimed in this action to recover the balance due him from Bradley, amounting to $119,83. The declaration contained the common counts for money, goods sold, and an account stated. The referee reported that nothing was due the plaintiff.

D. B. Prosser, for the plaintiff, now moved to set aside the report. ,

p. 590

J Taylor, contra.

Although the referee overruled the objection in relation to the form of the pleadings for the purpose of hearing the evidence, and also refused a nonsuit, the objection was renewed after the evidence was closed, and, so far as appears, the referee may have placed his final decision upon that ground. The objection was, I think, fatal to the action. The plaintiff was seeking to recover on .a special contract to pay the debt of Bradley, and he should have counted specially on the promise.^[1]

Í am inclined also to think the promise void for want of consideration. The note was not an available security in the hands of the plaintiff. It was no better than a piece of blank paper. He lost nothing by parting with it, and the defendant' got nothing by receiving it. It is of no importance that the defendant knew the note was not a valid security. His knowledge that he got nothing by the arrangement could not supply the want of a consideration for the promise.

Motion denied.

(a) (a) See Quin v. Hanford, (ante, p. 82, 86.)