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Risley v. Smith

39 N.Y. Super. Ct. 137 7 Jones & S. 137 Court N.Y. Super. Ct. Decision date 1875-02-01 English

Contents

Majority

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JOHN E. RISLEY, Plaintiff, v. WILLIAM H. SMITH and others, Defendants.

Headnote

I. EQUITABLE ASSIGNMENT.—EXECUTORY CONTRACTS TO ASSIGN.
1. What wili. operate as.
a. An order to pay a part of a fund not in existence will, upon the fund coming into existence, operate as an equitable assignment; but if the fund never comes into existence, the order can oniy operate as an executory contract to assign, a breach of which may give a right to damages.
But
to give validity to the order either as an equitable assignment or an executory contract a consideration is necessary.
2. Consideration", what not sufficient.
a. Husband and wife. An antecedent indebtedness due by the husband of the drawer of an " order payable out of a specified fund to grow due, is not a sufficient consideration. This though the order is accepted by the drawee—
See Alger v. Scott, 54 N. Y. 14 .
8. An illusion without substance or value is not sufficient.
Instances given.
e. A promise by the drawee to gay to the drawer, if the promis
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is such that the promisee will never have the use, benefit, or enjoyment of any thing is not sufficient.
1. It is a mere illusion, d. Forbearance does not form a consideration.
1. Where, although a security is taken which does not become payable until the expiration of some term yet to elapse, but the actual intention of the parties, had no reference to relieving the principal debtor from an action by his creditor.
%. Where the forbearance is not promised or given at the request of the promisor.
a. If & promisee gratuitously or voluntarily, or at the request of a third person, promises or gives forbearance, that can not sustain a contract which had no reference to forbearance.
H. APPLICATION OE ABOVE ■ PBINOIPLES.
1. A., as agent for a railroad company, procured B. to propose to enter into a contract for the building of the company’s road for a certain sum, to wit, two hundred and fifty thousand dollars. At a conversation between A., B., and the president of the company the subject of A.’s compensation came up, and it was agreed between them that he ought to have five thousand dollars; as the sum to be paid for building the road would exhaust all the available assets of the company, the president asked B. to pay the five thousand dollars. To this B. objected, but the final result was that it was arranged that the five thousand dollars should be added to the contract price for building the road, and that B. should give A. a draft on the railroad company for five thousand dollars payable pro rata as the money should become due to B. under his contract with the company. Thereupon the company and B. entered into a contract whereby B. agreed to construct the road, and to run or procure cars to run thereon, and the company covenanted that when B. should complete the road all the franchises, rights, and property of and belonging to the ■ company should become the property of B. and his associates, and further covenanted to pay B., on such completion, two hundred and fifty-five thousand dollars in certain specified installments. At the time of the execution of this contract B. gave to A. the order before mentioned, which was then and there accepted by the president on behalf of the company.
There was some evidence that before the arrangement for the order was consummated, the president said that he could possibly get additional subscriptions to the extent of five thousand dollars,
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if B. would consent to take that amount for the benefit of him (the president) and A. Afterwards the agreement to construct the road was, by the mutual consent of the parties thereto, canceled and annulled before .any sum became due B. thereunder.
, A. demanded payment from B. and the company, which, being' refused, he brought an action against B. on the order.
Held,
upon these facts that there was no sufficient consideration tc hold B. liable.
Before Monell, Ch. J., Sedgwick, and Speir, JJ.
Decided February 1, 1875.
Verdict for plaintiff, and exception ordered to be heard in the first instance at general term.
The complaint averred that a contract was entered into by the defendants and an Indiana Railroad Company, by which the former agreed to construct for the latter its road, for certain moneys to be paid by the latter from time to time.
That afterwards, while the contract was in force, the defendants, for a valuable consideration, drew a written draft or order on the company, directed to its president, in the words following, viz. :
“New York, July 13, 1867.
“$5,000.
“For value received pay to the order of John E. Risley, five thousand dollars pro rata, as the money shall become due to us under'our contract with you of this date, and charge the same to the account of
“ Yours Truly,
“ W. H. Smith,
“ Charles Kihg, “Cohde R. Altor.
“ To 8. O. Willson, as President of the Indianapolis, &c. Railroad Company.”
That afterwards, on the day of the date of the draft, the plaintiff presented the same to the said S. C. Will- ° son, as president, &c., and Willson, on behalf of the
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company, accepted the draft by writing thereon, “ Accepted, July 13, 1867, S. C. Willson as President o£ Indianapolis, &c., Railroad Company.”
That afterwards, to wit’., &c., the defendants and said railroad company, without the knowledge or consent of plaintiffs, and after defendants had begun to construct the road under the contract, and before any moneys had become due under it, canceled said contract.
That no part of the moneys due under said draft to the plaintiff, had ever been paid, although payment of the same had been demanded, both of said defendants and of said company.
The complaint demanded judgment in five thousand dollars, with interest from July 13, 1867.
The answer admitted the making of the contract.
It denied that the defendants made the draft set out in the complaint for a valuable or any compensation, . and alleged that without any consideration and at the request of the plaintiff, and of the said Willson, president, they drew said order to enable said Willson and said plaintiff to receive and collect from the company five thousand dollars, to cover what the plaintiff and Willson claimed to have been their labor and services, rendered to the company in carrying through the negotiation of the contract for building said road, and for that and for no other purpose, the said sum of five thousand dollars was agreed to be and was added to the contract price of two hundred and fifty thousand dollars, on which the company and the defendants had previously agreed, and the said order was drawn by the defendant, and accepted by the said Willson, as president of said company, accordingly.
That at the time said draft was drawn it was mutually understood that the ability of the defendants to execute their said contract with said company, and the receipt of said five thousand dollars by said plaintiff and
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Willson out of the proceeds of said contract, must and should depend and be contingent upon the defendants receiving funds necessary to carry out their contract, which they did not possess themselves, from other parties, upon whom they relied for that purpose, and that with such understanding these defendants drew, the plaintiff received, and the said Willson, as president, &c., accepted said draft.
That in fact the defendants, notwithstanding their best efforts, failed to secure the necessary funds to carry out said contract, and thereupon the said contract, was with the express assent of said Willson, and as these defendants were informed and believed, with the knowledge and assent of the plaintiff, canceled on the ground of the inability of the defendant to carry out the same.
The answer, for a separate defense, alleged that said Willson was a necessary party plaintiff, because it was agreed between the plaintiff and Willson that the said five thousand dollars, if realized, should be divided between the plaintiff and Willson, for services alleged to have been rendered by them jointly for the said company, in procuring the defendants to enter into said contract.
Upon the trial it appeared, by the plaintiff’s case, that the plaintiff on behalf of the Indiana Railroad Company, found the defendants and brought them into communication with Willson, president of the company. It was preliminarily and informally agreed between them, that the defendants would contract to build the road of the company for two hundred and fifty thousand dollars. There was then a conversation between the plaintiff, Willson and the defendants, in regard to compensating the plaintiff; It was agreed between them that the plaintiff ought to have five thousand dollars, and Willson suggested that as by the proposed contract the company was to give to the
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defendants all of its available assets, there would be no provision for paying the plaintiff, and asked that the defendants themselves pay it, to which the defendants made some objection. The final result was, that the defendants offered, if the railway company would increase the bonus five thousand dollars, from two hundred and fifty thousand dollars to two hundred and fifty-five thousand dollars, they would then give the plaintiff the draft in .suit. The defendants agreed to draw the draft, provided that was done. Thereupon an agreement was made, July 13, 1867, between the defendants and the railroad company, by which the defendants covenanted to construct the road, and to run or procure cars to be run thereon ; and the railroad company covenanted that when the defendants should complete said railroad, all the franchises, rights and property of, and belonging to the company, should become the property of the defendants and their associates. The company further covenanted to pay the defendants in the aggregate, two hundred and fifty-five thousand dollars, but in installments, specified as the work went on. The agreement was executed on behalf of the .company by Willson as president of it. At the same time, the draft or order in suit was drawn and accepted. After the plaintiff had the order, Willson suggested that he had been at great expense and trouble, but the company had no means to reimburse him, and said the plaintiff ought to give him part of the money after he had collected it. The plaintiff said, as matter of grace and nothing more, he would give Willson, one-third or one-fourth of the money, after it was collected. On April, 16, 1868, by the mutual consent of the parties to the agreement to construct the road, it was canceled and annulled between them, before any sum became due to the defendants thereunder. The plaintiff had demanded payment, both of the defendants and the railroad company, but this was refused
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The defendants moved to dismiss the complaint on the ground that the testimony showed no liability of the defendants. The motion was denied, and the defendants excepted.
On the part of the defendants, Mr. Nelson testified that he introduced the plaintiff to the defendants, at the beginning of the negotiation ; that Willson, for the company, offered the defendants two hundred and fifty thousand dollars; that there was a proposition to allow the plaintiff something out of this, but the defendants said they could not spare it; that Willson said he would go home and see if he could not get five thousand dollars subscribed in addition ; that Willson said he wanted a portion of this, and the plaintiff was to take care of Willson.
The defendant Alton testified that Wills.on stated that he possibly could increase the amount five thousand dollars, if the defendants would consent to take that amount for the benefit of himself and the plaintiff, as the witness understood, and upon that the proposition was drawn up and executed with the amount at two hundred and fifty-five thousand dollars, on the understanding that five thousand dollars was to be applied to the compensation of plaintiff and Willson. The fund was to be held by the plaintiff, and Willson was to derive a benefit from it. The witness was asked by defendant’s counsel, “ Q. Why did you not go on and build the road?” Upon objection, defendants offered to show that they did not go on to build the road, because of their inability, and that the contract was surrendered and canceled solely on this ground. The question was shut out and the offer rejected, to which the defendants duly excepted.
The defendants renewed the motion to dismiss the complaint or to direct a verdict for the defendants on the ground that there was no liability upon the testi
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mony shown of these defendants. This was denied, and exception taken.
The defendants’ counsel asked the court to submit to the jury the following propositions, among others :
If the jury find that the draft was given to the plaintiff to enable' him to collect from the company money due him from the company, and not as an evidence of indebtedness from the defendants to the plaintiff, they should find for the defendants.
If the jury find that the draft was given- in the form of a draft for the plaintiff’s convenience to enable him to collect the money from the company, the plaintiff can not recover. The requests were denied, to which the defendants duly excepted.
The court directed a verdict for the plaintiff, to which exception was taken, and further directed the exceptions to be heard before the general term in the first instance, judgment in the meanwhile to be suspended.
John E. Risley, plaintiff, in person, and James Clark, counsel, on the points considered by the court, urged;
I. The draft in question was drawn and delivered by defendants for a sufficient consideration. (1) It purports, by its terms, to be drawn “for value received.” These words afford prima facie evidence of a valid consideration, and cast on defendants the burden of proving that there was no consideration (Jerome v. Whitney, 7 Johns. 321 ; Hinman v. Moulton, 14 Id. 466 ; Jackson v. Alexander, 3 Id. 484; Walrad v. Petrie, 4 Wend. 576 ; Prindle v. Caruthers, 15 N. Y. 425 , 431). (2) The five thousand dollars added to the bonus agreed to be paid'to defendants, constituted a valid and valuable consideration for the drawing and delivery of the draft to the plaintiff, (a) One promise is a good consideration for another (1 Pars, on Cont. 448; Miller v. Drake, 1 Caines, 45, 46; Briggs v.
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Tillotson, 8 Johns. 235 ; N. Y. & N. H. R. R. Co. v. Pixley, 19 Barb. 428 ; White v. Demilt, 2 Hall, 436 ; Funk v. Hough, 29 Ill. 145 ; Downy v. Hinchman, 25 Ind. 453 ; Nunally v. White, 3 Metc. (Ky.) 584; Babcock v. Wilson, 17 Me. 372 ; Whitehead Potter, 4 Ired. L. 257 ; Appleton v. Chase, 19 Me. 74 ; Society in Troy v. Perry, 6 N. H. 164 ; George v. Harris, 4 Id. 533; Forney v. Shipp, 4 Jones (N. C.) 527; Nott v. Johnson, 7 Ohio St. 270 ; Abrams v. Suttles, Busbee (N. C.) 99). (b) The promise of the railroad company to pay the defendants the additional five thousand dollars afforded a valid consideration for the obligation incurred by them in drawing and delivering the draft to the plaintiff. It is not necessary that the consideration of a promise should move from the promisee to the promisor. It is sufficient that it proceed from a third party—especially, to use the language of some of the authorities, if the promisee have “intervened in the agreement ” (1 Smith Lead Cas. 224; 1 Story on Cont. §§ 450, 451 b. ; Farley v. Cleveland, 4 Cow. 432 ; Barker v. Bucklin, 2 Den. 45 ; Stewart v. Trustees of Ham. Col., Id. 403, 417; Del. & Hud. Canal Co. v. Westchester Bank, 4 Den. 97 ; Tipper v. Bicknell, 3 Bing. (N. C.) 710, Webb v. Rhodes, Id. 732; Arnold v. Lyman, 17 Mass. 400 ; Carnegie v. Morrison, 2 Metc. (Mass.) 381). (3) The company’s obligation to pay the plaintiff for his services, prior to the drawing and acceptance of the draft, was absolute and present. On the faith of the draft plaintiff accepted, instead of an absolute, a conditional liability of the company, and consented to receive his pay in future installments instead of in presenti. Each of these concessions afforded a valid consideration for the obligation assumed by defendants in drawing and delivering the " draft.
II. Through the drawing and delivery of the draft by defendants, and its written acceptance by the rail
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road company, plaintiff became the equitable assignee of an interest in the contract between defendants and the company, and entitled to five thousand dollars of the money to be paid pursuant thereto (Vreeland v. Blunt, 6 Barb. 182 ; Peyton v. Hallett, 1 Caines, 364, 379; McMenomy v. Townsend, 3 Johns. 72 ; Bradley v. Root, 5 Paige, 632; Ward v. Whitney, 8 N. Y. 442 ).
III. The draft having been drawn and delivered for a sufficient consideration, and the plaintiff having become the assignee of an interest, equal to the face of the draft, in the contract between the company and defendants, the latter became bound to perform the contract for the benefit of the plaintiff ; and their subsequent surrender of it, without the plaintiff ’ s consent, was a breach of their obligation to him, rendering them liable for the amount secured by the draft. The true principle is laid down in the case of Worden r. Dodge, 4 Den. 159 . The action was on an agreement by which the defendants agreed to pay the plaintiff a specific sum out of the net proceeds of a certain ore bed. The plaintiff read the agreement and rested ; whereon defendants moved for a nonsuit. The judge granted the motion, holding that the “plaintiff could not recover without proving that the defendants had received funds from the ore to enable them to pay, or had neglected to work the ore bed.” The obligation of the makers of the contract in that case to work the ore bed, and that of the drawers of the draft in this to construct the road, stand on exactly the same footing.
IV. There was no error in the court’s rejection of defendants’ offer to show “that they did not go on to build the road in accordance with the terms of the contract, because of their inability to do it, and that the contract was surrendered, and the surrender accepted by the company on that ground.” If, by drawing and delivering the draft, defendants incurred the obligation
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claimed by the plaintiff, their subsequent embarrassments furnished no better answer to his demand than the insolvency of the maker of a promissory note would to an action against him by the holder. “Nulla bona” however complete a defense to an execution, has never been regarded as a good plea in bar before judgment. Defendants’ offer, however, is significant in one respect: it is a distinct admission, on the record, that the surrender and cancellation of the contract between them and the company was for a reason wholly • different from the alleged fraud in which they now accuse themselves of having participated, and which, they insist vitiated both the contract and the draft.
Rodman & Adams, attorneys, and S. P. Nash, of counsel for defendants, on the points considered by the court, urged;
I. Unless the order signed by the defendants amounted, in legal effect, to an undertaking with the plaintiff to go on with the" contract with the railroad company, so as to earn the money out of which the order was payable, the defendants incurred no liability to plaintiff by surrendering the contract. (1) An order payable in a particular manner out of a particular fund is not a bill of exchange, and is not subject to the law merchant (Cook v. Satterlee, 6 Cow. 108 ; Morton v. Nayler, 1 Hill, 583 ; Van Wagner v. Terrett, 27 Barb. 181 ). (2) An order drawn, not against funds in hand, but made payable out of funds expected at a future day, does not per se guarantee that such funds will come to hand. (3) The legal import of the draft in- suit was this: “We expect to earn two hundred and fifty-five thousand dollars agreed to be paid to us by the railroad company. If we do, we will pay you five thousand dollars out of it, and you may collect it of the company as earned, and before it is paid over to us.” No obligation was assumed to earn it or to pay, in default of earning it (Churchward
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v. Regina, Law Rep. 1 Q. B. 173). (4) Considered as an assignment of interest of five thousand dollars in the contract, it created no obligation on the part of the defendants, as assignors, to earn the money. Their only duty to the plaintiff was, in case the money was earned, not to prevent his obtaining it. A warranty of title is implied in a sale of personal property ; and in the sale of a chose in action, a warranty is sometimes implied that the amount due is that called for by the security; but this implied warranty is “founded on the presumed superior knowledge of the vendor on the subject” (Furniss v. Ferguson, 15 N. Y. 437 . 34 Id. 485 ; 3 Robt. 269). But a warranty applies to an existing state of facts, not to expectations; and in the case at bar, if there was any superior knowledge in either party, as to the facts relating to the contract, it was in the plaintiff.
II. If the giving of the order did not imply an undertaking at all events to fulfill the contract or pay the five thousand dollars, then a surrender of the contract, if made in good faith, was no more a violation of duty to the plaintiff than a non-performance of the contract through mere inability of the contractor.
III. If the order implies an absolute undertaking on the part of the defendants to the plaintiff, to perform the contract, or to pay to him the sum expressed in the order, such an undertaking was without consideration. (1) When the order was given, defendants owed the plaintiff nothing. He had been employed, not by them, but by the railroad company through Willson, though he “had commenced as a volunteer to look for contractors, as'he had an interest in lands along the line.” This is his own statement. (2) The contract between the defendants and the company was to build the road for two hundred and fifty thousand dollars. It was increased to two hundred and fifty-five thousand dollars, not to benefit the defendants
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but the plaintiff, and the extra five thousand dollars was transferred to plaintiff as soon as the contract was made. There was no advantage to defendants in this ; no discharge or modification of any obligation on their part, as they were under none; no increase in the amount of their compensation, as the nominal increase was at once transferred to plaintiff, and was never even to come into their hands. If the contract price was increased, they were to draw the order in question, that is, were to assign the full amount of the increase. This is plaintiff’s own version of the arrangement. The exception to the refusal to instruct the jury, was well taken.

In Alger v. Scott, 54 N. Y. 14 , the commission, of appeals held, that an order to pay out of a specified fund, viz., rent to grow due from the drawee to the drawer, such order being accepted, did not in the absence of a consideration, make the payee of the order, an equitable assignee of the rent, it having fallen due ; and that the ord er being given to secure an antecedent indebtedness due by the husband of the drawer to the payee, was not sufficient consideration. Commissioner Earle dissented. We are not in this case called on to consider what the rights of the payee are, when from the face of equitable principles, it is deemed there has been a grant, or executed transfer, of the right to the fund, by the former owner. But there can hardly be a doubt, that when the assignment has not been made, but is executory, the payee’s rights must depend upon the obligation legal or equitable, of the person sued, to complete the assignment. In this case we do not consider the obligations of the acceptor, for it is not made a defendant, but only of the drawers who are sued.

Such orders to pay a part of a fund, not in existence, have been held several times, to be assignments, al

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though not accepted, upon the fund drawn on coming into existence. (Field v. Mayor of N. Y. 6 N. Y. 184 . Parker v. City of Syracuse, 31 Id. 376. Hall v. City of Buffalo, 1 Keyes, 193. Stover v. Eyclesheimer, 3 Id. 620). In the first case cited, an instrument in the form of an assignment, was held to operate as an agreement by the assignor that the assignee should take and receive the fund, when it should come into existence. It was not indeed an assignment in presentí, and did not at the time it was made transfer the claim the assignee had against the defendant, but it created an equity which seized upon the moneys as they became due, and continued so to do, until the object of the agreement was accomplished.

If the fund never comes into existence, it is impossible that there should be an assignment, or transfer of it. Then at the best, the obligation, is in its nature, one of contract to make the assignment, and in case specific performance be impossible, a breach of the contract may give a right to damages.

In the present case, the order by its terms is not an agreement. If any agreement be implied (Road v. Dawson, 1 Ves. Sen. 332; 3 Lead. Cas. in Eq.; 2 Spence Eq. Jur. 855), it was that the defendant would transfer to the plaintiff, or put him in possession of, the fund described as one thereafter to arise from their performance of the contract to build the road. This being an executory contract, and nothing more, a consideration must be found to make the defendants liable in damages for not performing it. And the learned counsel for defendants assumed, that a consideration must be proven, and forcibly urged, that one fully appeared by the evidence.

The facts relevant to the issue of consideration were not the subject of conflict among the witnesses. It is. not claimed by the plaintiff that the defendants were under any liability to the plaintiff, by reason of his

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procuring the contract to be made. Whatever he did was on the employment, and at the request, of the railroad company solely. Before the contract was entered into, the negotiations had fixed the sum to be paid to the defendant at two hundred and fifty thousand dollars. It was demanded that they should agree to pay the plaintiff, out of this sum, five thousand dollars for his services. They not being liable to the plaintiff, refused to agree to this. But on the promise to have the sum to be paid to them made, by the contract, two hundred and fifty-five thousand dollars, they agreed to give the order in question. The contract was made to pay the defendants two hundred and fifty-five thousand dollars, and they drew the order.

Whatever the circumstances are, a consideration to support a contract must be substantial. It must have value, although the quantity of the value need not be great, but may be small. If it be an illusion, making but a false appearance of value, it is not a valuable consideration. The naked fee of an owner, after his ' interest in the land has been sold under execution, will not be a consideration for a promise to pay so much money for it (Van Alstyne v. Wemple, 5 Cow. 162 ). A promise to release from a contract void by the statute is not a consideration (Silvernail v. Cole, 12 Barb. 685 ).

A promise to pay in the future, or to act in the future, may be a consideration, but because the consideration takes the shape of a promise, not the less must the promise be of value. A promise by a plaintiff to account to the defendant for the interest of a third person in an adventure, when at the time of the promise it was possible that such third person might have a balance due him, yet it did not appear that he had one in fact, is not a valuable consideration (Powell v. Brown, 3 Johns. 104 ). A promise to pay has value-to the promisee from it being a means of obtaining the thing promised. If the promisee is to have the money

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as his own for a short time, it may be enough. On the other hand, if the promise is such that upon full performance the promisee will never have use, benefit, or enjoyment of anything, there is not even an appearance of value to him.

In the present case, we will suppose that the railroad company promised to pay the additional five thousand dollars, if the defendants would draw the order. We do not now examine the reality of this supposition, although it would appear that by the contract the whole two hundred and fifty-five thousand dollars was made a consideration for the defendant’s promises to build the road. We will consider the facts as if the order and acceptance had been inserted in the contract, in terms expressive of the obligations of the parties, as we have, for the purpose of this case, supposed they exist upon the order in its detached state.

It would then have appeared that, cotemporaneously with the promise of the railroad company to pay to the defendants the two hundred and fifty-five thousand dollars, the defendants promised the plaintiff and the railroad company to assign five thousand dollars of hat sum to the plaintiff, and to accomplish that, divested themselves of all claim to demand the five thousand dollars of the company. There was no instant of time when the defendants would have use or enjoyment, either of the five thousand dollars, or of the promise to pay the five thousand dollars. Therefore such a promise was without value to them. At the same time (looking at the company as the acceptor of the order), the contract would have contained a promise by the company, that upon the defendants performing, the company would pay the five thousand dollars to the plaintiff, which reduced the amount promised to be paid to the defendants to two hundred and fifty thousand dollars.

p. 153
If such had not been the nature of the transaction, but the contract had contained an absolute promise to pay to the defendants two hundred and fifty-five thousand dollars in their own right, the defendants would have had a valuable interest in the five thousand dollars, as parcel of that sum. As the facts were, I am of opinion that the promise by the railroad company to increase the two hundred and fifty thousand dollars to two hundred and fifty-five thousand dollars, and the performance of that promise was not a valuable consideration to make the defendants liable upon the executory contract in question.

Again, was there an implied agreement by the plaintiff to forbear suing the railroad company for the value of his services, which made the executory contract, which we have supposed to exist in the case, an obligation upon the defendants as founded upon a consideration ? There is no proof that the plaintiff made an express promise to forbear.. If there were a promise it must be implied in, or inferred from, the fact that the order and acceptance matured in the future. It is not a necessary consequence, from giving collateral security, that, there be forbearance upon the principal obligation. The surety, as such, may desire that the principal debtor be called upon to pay, and, if possible, compelled to pay, before he, the surety, shall be liable. At the most, there would be a presumption that the creditor took security to give the principal debtor ease in the present. This presumption would be explained, if the other facts showed a different intention.

In the present case, without going into a minute dissection of the testimony, it seems clear to me, that the actual intention of the parties had no reference to relieving the railroad company from an action by the' plaintiff. The arrangement was one by which the , railroad company should be put in funds sufficient to > pay the plaintiff. The contract that was contemplated

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at first, for the building of the road for two hundred and fifty thousand dollars, left the company without money to pay the plaintiff. In order to get the money, the defendants, by a letter, required that two hundred and fifty-five thousand dollars should be paid. This demand led to the company acquiring in some way five thousand dollars more. The arrangement substantially had reference to this, and not to the time when the plaintiff should call on the company for payment of its indebtedness to him.

Beyond this, to uphold forbearance as a consideration, it must be part of the contract, as between the parties. The party to be held must have made the contract upon that consideration. To state it in another way, the forbearance must be promised or given at the request of the promisor. If the promissee, gratuitiously or voluntarily, or at the request of a third person, promises or gives forbearance, that can not sustain a contract which had no reference to forbeáranpe. In the present case, the facts show that if forbearance was given, the company did not ask time, nor was the order given to the plaintiff on that score. The sole object of the transaction being to get the company in funds, as a help both to the plaintiff and to the Railroad Company, it affirmatively appeared that the defendants did not request the forbearance, but the plaintiff voluntarily gave it, so far as the defendants were concerned. I do not think, therefore, that in this matter there is a consideration which holds the defendants to the performance of a contract.

The theory of the present action, in substance, holds the defendants to the payment of a debt due by the company. It might be questioned, whether the drawing of a non-negotiable order constitutes such a written promise to pay, that it is not invalid by the statute of frauds. This was not discussed on the argument, and is not passed upon here. For the reasons stated

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above, I am of opinion that the motion to dismiss the complaint should have been granted ; that the exception to the ruling in that respect should be sustained. The verdict should be set aside, and a new trial granted, with costs to defendants to abide event.

Monell, Ch. J., and Speir, J., concurred.

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