7 N.Y. 349, L'Amoreux v. Gould

Citation7 N.Y. 349
Case DateOctober 01, 1852
CourtNew York Court of Appeals

Page 349

7 N.Y. 349




New York Court of Appeal

October 1, 1852

Page 350


J. C. Spencer, for appellant.

N. Hill, Jr., for respondent.

EDMONDS, J.--(After disposing of some objections arising upon the pleadings which were cured by the finding by the referee),

The only question to be determined therefore, is, whether there was such a want of mutuality between the parties that there was in fact no cause of action.

The proposition is stated by Chitty as broadly as the defendant's counsel claims it, that if the one party never was bound on his part to do the fact which forms the consideration for the promise of the other, the agreement is void for want of mutuality (Chitty Contr. 15); but the proposition is too broadly stated. It is confined to those cases where the want of mutuality would leave one party without a valid or available consideration for his promise ( Arnold v. Mayor of Poole, 4 Man. & Gr. 860). For there are many valid contracts not mutually

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binding at the time when made; as where A says to B, if you will furnish goods to C I will pay for them, B is not bound to furnish them, but if he does he may recover on the promise (2 Saund. 137, h; Matoon v. Burr, 7 Ad. & E. 19; Kenndevay v. Treleavan, 5 M. & W. 498).And the question in this case is not whether the plaintiff was bound to pay the $1000, but whether, if he did pay it, the defendant was without any valid or available consideration for his promise. The agreement is, that if the plaintiff will pay $1000 on notes on which he is holden as endorser, &c. Now I am not very clear whether this means on notes on which he was absolutely fixed and liable as endorser by means of due protest or those on which he was merely liable to be, in case of nonpayment by the drawer. The pleadings do not help us out of the difficulty at all, but the evidence shows that three of the five notes were not due at the time the agreement was made, and the agreement recites that he was endorser on several notes some of which had become due, &c. Those notes which had become due at that time and on which alone the plaintiff could then have become "holden" by due protest, did not amount to one half of the $1000 that he was to pay, while all of the five notes which he had endorsed amounted to more than the $1000. I should infer that the parties meant by this equivocal expression...

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