Jerome v. Whitney — 7 Johns. 321

Majority

p. 321

Jerome against Whitney.

ALBANY,

Feb. 1811.

Headnote

a note to pay-'is :?ot a note. in the statute, and thc cousideration, must be stated and shown. But the words, “ value snoífa'note, ’is {¡Acon g^ten"^ east 0,1 the defendant, the burden of proving that consUleration.n° But if the plaintiff, in his declaration on suelva note, instead of stating generally that it was given for value received,-sets forth specially -in whatthe value received consisted, he is bound to prove the particular value according to the averment, and the general acknowledgment, of value in the note is not sufficient to support the declaration.

THIS was an action of assumpsit. The declaration contained two counts. 1. For that whereas the defendant, on the 9th November, 1803, at, &c. in considera- ’ 77? tion that the plaintiff would then and there sell and con- x vey to the defendant, a certain' piece or parcel of land, . „ , .. . . situate, See. made a certain instrument or note in wrxting, subscribed, &c. bearing date the same day and year aforesaid, and delivered the same instrument in writing ta the plaintiff, and thereby, for value received, promised to pay the plaintiff sixty dollars with interest, to be paid . c J i . J 7 1 m neat cattle, m one year from, the date, at cash price, &c. and the plaintiff averred, that he did then and there

p. 322

sell and convey to the defendant, a certain lot or piece J ’ v of land, situate, &c. by virtue whereof, and by force of the statute in such case made and provided, the defendant became liable to pay, &c. and being so liable, did, afterwards, on, &c. at, &c. undertake and promise, &c.

2. The second count was for money had and received to the use of the plaintiff. The defendant pleaded non assumpsit.

The cause was tried at the Onondaga circuit, on the 9th June, 1810, before the Chief Justice.

The plaintiff gave in evidence a note, as follows: “ For value received, I promise to pay Chauncey Jerome sixty dollars with interest, to be paid in neat cattle, in one year from this date, at cash price. Witness my hand, at Aurelius, November 9, 1803. Jonathan Whitney.” The counsel for the defendant moved for a nonsuit, unless the plaintiff proved the consideration set forth in his declaration, and the averment, as to the same consideration, there stated; but the objection was overruled by the Chief Justice, who decided, that the words, “ value received,” in the note, were prima facie evidence of the consideration, and cast the burden of proof on the defendants to disprove it; and; thereupon, the jury, under his direction, found a verdict for the plaintiff, for 84. dollars and 45 cents.

Rodman, for the defendant.

I rely on the case of Lansing v. M'Killip.^[3] It was there decided, after a consideration of all the cases, that where two good considerations are stated in a written contract, both must be proved as laid, though the promise express to be for “ value received.” The doctrine is laid down in Hughes v. Hughes,^[4] at a Par0- promise, though in writing, is not valid, unless the consideration be proved. The words, “ value 1 received,” do not, of themselves, import a consideration, but it must be averred and proved,

p. 323

Cady, contra.

In Jackson, ex dem. Hudson, v. Alexander,^[3] the court decided, that the words “ value received” in a deed, .imported a sufficient consideration ; and the Chief Justice, in taking notice of the case of Lansing v. M'Killip, observed, that it was determined on the ground, that the words “ value received” imported a consideration ; though two of the judges intimated an opinion, that they did not dispense with the necessity of averring and proving a consideration. If, then, these Words import a sufficient consideration in a deed, there is no good reason why they should not have the same effect in a simple contract.

Again, the plaintiff was entitled to offer the note in ¿evidence, under the money count.^[4] This gets rid of the objection, as to the necessity of proving the special consideration laid in the first count.

This is not a promissory note under the statute, for it is payable in “ neat cattle,” and it therefore required a consideration to be stated, either by showing the acknowledgment of one upon the face of the note, or otherwise by particularly averring it, as in a declaration upon a special agreement. The note is expressed to be given for value received, and the question is, whether that is not evidence, prima facie, of a consideration. Whatever might have been the true import of the decision in Lansing v. M'Killip, (3 Caines, 286.) in respect to this question, is not now very material, for since the case of Jackson v. Alexander, ( 3 Johns. Rep. 484 .) the court cannot consistently say, that the acknowledgment of value received is not evidence of consideration in a note, as well as in a deed. It is sufficient to cast upon the defendant the burden of proving that there was no consideration. This rule is rea- . sonable and convenient. Notes payable in specific chattels are very common, and to compel the plaintiffs, in every instance, notwithstanding the note is expressed to

p. 324

be for value received, to prove the true aM id~entical$ consideration at large, is imposing upon hIm a• great and unnec~ssary hardship. The confession bf value bythe maker clf the note ought to be sufficient in the first in' stance.

Had the plaintiff in this ease declared upon the note,stating it to have been given for value received, and had not set forth a special and" particular consideration, the production and proof of the note would have been sufficient to have put the defendant upon his- defence.- But having specified in what that value consisted; he was-bound to prove the averment as laid. A particular" value charged was materially different from-value in general; and so it was lately held, in England, in Knill v. Williams, (10 East, 431.) On this ground the verdict must be set aside for misdirection, and a new trial awarded, with costs to abide the event; but the plaintiff is at liberty to amend his declaration, by striking out- the special consideration set forth.

New trial granted-.