Stevens v. Corbitt

• Decision Date: 11 April 1876
• Citation: 33 Mich. 458
• Court: Michigan Supreme Court
• Parties: William H. Stevens v. Jeffrey Corbitt. [1]

33 Mich. 458

William H. Stevens v. Jeffrey Corbitt. ^[1]

Supreme Court of Michigan

April 11, 1876

Heard January 12, 1876

Error to Montcalm Circuit.

Judgment reversed, and affirmed as to the residue, to recovered his costs in this court.

M. C Palmer and Lemuel Clute, for plaintiff in error, argued that the declaration averred a promise based on an executed consideration, and that to support a promise grounded on a past consideration it must appear that the consideration moved at the request of the promisor: Comstock v Smith, 7 Johns. 87; Parker v. Crane, 6 Wend 647; and a mere voluntary courtesy to the defendant will not support an after-made promise: 1 Smith's L. C., 265-7.

Notwithstanding the words "value received," it was competent to show there was in fact no consideration: Osgood v. Bringolf, 32 Iowa 265; Jerome v. Whitney, 7 Johns. 321; Colbath v. Jones, 28 Mich. 280; People v. Howell, 4 Johns. 226; Fink v. Cox, 18 Johns. 145.

While a promise to pay a railroad company a specified sum of money on condition of its building a certain road in a specified time, may in some cases, on performance of the condition, be clothed with a valid consideration which related back to the promise and thereby became a valid and binding contract, it must be made to appear not only that the offer made by the promise was accepted by performance, but also that the performance was in reliance upon the promise; and the acceptance and performance must be by the promisee.

If the contract be treated as a subscription, it must be shown the road was constructed by the promisee in reliance on the promise: People v. Taylor, 2 Mich. 253; Underwood v. Waldron, 12 Mich. 73; and the declaration should have averred the promise to be to give so much to build the road, and that the offer was accepted, and the road built relying on the offer: Utica, etc., R. R. Co. v. Brinkerhoff, 21 Wend. 141.

George A. Smith and Blanchard & Bell, for defendant in error.

OPINION

Marston, J

Plaintiff in error executed and delivered an instrument in writing, of which the following is a copy.

"$ 321 00. Stanton, Mich., July 8, 1872.

"For value received, I promise to pay to the order of H. H. Smith, Esq., three hundred and twenty-one dollars, one year from the time when the railroad proposed to be built on some point on Detroit, Lansing & Lake Michigan Railroad, not more than five miles from the station of that company in Ionia, north to Stanton, shall be open, and trains shall pass over it to and from Stanton to said point of junction; the said road, under present or future to be formed organization, to be called 'The Ionia, Stanton and Northern Railroad;' provided work be commenced on said road within forty days, and that said trains are run thereon by the first of May, A. D. 1873.

"William H. Stevens."

This agreement was afterwards properly assigned to the defendant in error, who commenced an action in March, 1875, to recover the amount claimed to be due thereon.

The court found that H. H. Smith, in July, 1872, was superintending the D., L. & L. M. R. R. Co., and was the active business man in building the Ionia, Stanton & Northern Railroad, and was president of both roads; that all the terms and conditions of the agreement, as to the time, manner, etc., of building the road, had been fulfilled, and that trains were running regularly over it to and from Stanton to the junction and Ionia station about the 28th of April, 1873. Judgment was rendered in favor of Corbitt for the principal, with interest thereon from April 28, 1873.

A question was raised as to the form and effect of the written assignment made by Smith; also, whether it could be said that trains were running regularly over the road while the engine had to back one way for want of a turn table at Stanton. We do not, however, find any error in the ruling of the court upon these, or some other questions that were raised, and we do not consider them of sufficient general importance to discuss them at present.

It was insisted that the organization of the company and building the road did not affect this agreement; that in order to entitle the plaintiff to recover, it must appear either that that there was some promise or agreement to build the road made to Stevens as a consideration for his promise, or that the company went on and built the road in reliance upon Stevens' promise to pay, and it is...