Hamer v. Sidway

CourtNew York Court of Appeals
Citation27 N.E. 256,124 N.Y. 538
Decision Date14 April 1891
PartiesHAMER v. SIDWAY.

124 N.Y. 538
27 N.E. 256

HAMER
v.
SIDWAY.

Court of Appeals of New York,
Second Division.

April 14, 1891.


Appeal from an order of the general term of the supreme court in the fourth judicial department, reversing a judgment entered on the decision of the court at special term in the county clerk's office of Chemung county on the 1st day of October, 1889. The plaintiff presented a claim to the executor of William E. Story, Sr., for $5,000 and interest from the 6th day of February, 1875. She acquired it through several mesne assignments from William E. Story, 2d. The claim being rejected by the executor, this action was brought. It appears that William E. Story, Sr., was the uncle of William E. Story, Sr., was the celebration of the golden wedding of Samuel Story and wife, father and mother of William E. Story, Sr., on the 20th day of March, 1869, in the presence of the family and invited guests, he promised his the uncle of William E. Story, 2d; that at drinking, using tobacco, swearing, and playing cards or billiards for money until he became 21 years of age, he would pay him the sum of $5,000. The nephew assented thereto, and fully performed the conditions inducing the promise. When the nephew arrived at the age of 21 years, and on the 31st day of January, 1875, he wrote to his uncle, informing him that he had performed his part of the agreement, and had thereby become entitled to the sum of $5,000. The uncle received the letter, and a few days later, and on the 6th day of February, he wrote and mailed to his nephew the following letter: ‘Buffalo, Feb. 6, 1875. W. E. Story, Jr.-Dear Nephew: Your letter of the 31st ult. came to hand all right, saying that you had lived up to the promise made to me several years ago. I have no doubt but you have, for which you shall have five thousand dollars, as I promised you. I had the money in the bank the day you was twenty-one years old that I intend for you, and you shall have the money certain. Now, Willie, I do not intend to interfere with this money in any was till I think you are capable of taking care of it, and the sooner that time comes the better it will please me. I would hate very much to have you start out in some adventure that you thought all right and lose this money in one year. The first five thousand dollars that I got together cost me a heap of hard work. You would hardly believe me when I tell you that to obtain this I shoved a jack-plane many a day, butchered three or four years, then came to this city, and, after three months' perseverance, I obtained a situation in a grocery store. I opened this store early, closed late, slept in the fourth story of the building in a room 30 by 40 feet, and not a human being in the building but myself. All this I done to live as cheap as I could to save something. I don't want you to take up with this kind of fare. I was here in the cholera season of '49 and '52, and the deaths averaged 80 to 125 I was working for, told me, if I left them, to go home, but Mr. Fisk, the gentleman i was working for, told me, if I left them, after it got healthy he probably would not want me. I stayed. All the money I have saved I know just how I got it. It did not come to me in any mysterious way, and the reason I speak of this is that money got in this way stops longer with a fellow that gets it with hard knocks than it does when he finds it. Willie, you are twenty-one, and you have many a thing to learn yet. This money you have earned much easier than I did, besides acquiring good habits at the same time, and you are quite welcome to the money. Hope you will make good use of it. I was ten long years getting this together after I was your age. Now, hoping this will be satisfactory, I stop. One thing more. Twenty-one years ago I bought you 15 sheep. These sheep were put out to double every four years. I kept track of them the first eight years. I have not heard much about them since. Your father and grandfather promised me that they would look after them till you were of age. Have they done so? I hope they have. By this time you have between five and six hundred sheep, worth a nice little income this spring. Willie, I have said much more than I expectied to. Hope you can make out what I have written. To-day is the seventeenth day that I have not been out of my room, and have had the doctor as many days. Am a little better to day. Think I will get out next week. You need not mention to father, as he always worries about small matters. Truly yours, W. E. STORY. P. S. You can consider this money on interest.’ The nephew received the letter, and thereafter consented that the money should remain with his uncle in accordance with the terms and conditions of the letter. The uncle died on the 29th day of January, 1887, without having paid over to his nephew any portion of the said $5,000 and interest.


[124 N.Y. 541]H. J. Swift, for appellant.

[124 N.Y. 543]Adelbert Moot, for respondent.


[124 N.Y. 544]PARKER, J., ( after stating the facts as above.)

The question which provoked the most discussion by counsel on this appeal,

[27 N.E. 257]

and which lies at the foundation of plaintiff's asserted right of recovery, is whether by virtue of a contract defendant's testator, William E. Story, became indebted to his nephew, William E. Story, 2d, on his twenty-first birthday in the sum of $5,000. The trial court found as a fact that ‘on the 20th day of March, 1869, * * * William E. Story agreed to and with William E. [124 N.Y. 545]Story, 2d, that if he would refrain from drinking liquor using tobacco, swearing, and playing cards or billiards for money until should become twenty-one years of age, then he, the said William E. Story, would at that time pay him, the said William E. Story, 2d, the sum of $5,000 for such refraining, to which the said William E. Story, 2d, agreed,’ and that he ‘in all things fully performed his part of said agreement.’ The defendant contends that the contract was without consideration to support it, and therefore invalid. He asserts that the promisee, by refraining from the use of liquor and tobacco, was not harmed, but benefited; that that which he did was best for him to do, independently of his uncle's promise,-and insists that it follows that, unless the promisor was benefited, the contract was without consideration,-a contention which, if well founded, would seem to leave open for controversy in many cases whether that which the promisee did or omitted to do was in fact of such benefit to him as to leave no...

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114 practice notes
  • Granite Partners, L.P. v. Bear, Stearns & Co., No. 96 Civ. 7874(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 26, 1999
    ...or suffered by the party to whom the promise is made as consideration for the promise made to him.'" Id. (quoting Hamer v. Sidway, 124 N.Y. 538, 545, 27 N.E. 256, 257 Under traditional principles of contract law, the parties to a contract are entitled to make their own bargain, "e......
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...99 N.Y.S. 952; Harris v. Johnson, 134 P. 1048; Doyle v. Dixon, 97 Mass. 208-213; Tilton v. Musgrave, 169 Ill.App. 243; Hamer v. Sidway, 27 N.E. 256, 124 N.Y. 538; Bolles v. Sachs, 33 N.W. 863; Pierce v. Stolhand, 124 N.W. 259; Marling v. Fitzgerald, 120 N.W. 388.) The promise of the defenda......
  • Lo Bosco v. Kure Engineering Ltd., Civ. A. No. 93-2451.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • July 11, 1995
    ...family member, reliance considerably more ethereal than quitting a job at a law firm will support a promise to pay money. Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (1891) (nephew's promise not to smoke, swear, or play at cards or billiards until age 21 sufficient consideration for promise ......
  • In re Eljay Jrs., Inc., Bankruptcy No. 87-B-10094 (HCB)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Northern District of New York
    • October 27, 1989
    ...(hereinafter "Scott"). Third, "the property and the disposition of it must be definitely stated," Hamer v. Sidway, 124 N.Y. 538, 550, 27 N.E. 256, 258 (1891) or the corpus must be "sufficiently designated or identified to enable title thereto to pass to the trustee.......
  • Request a trial to view additional results
119 cases
  • AXA Inv. Managers UK Ltd. v. Endeavor Capital Mgmt. LLC, No. 11 Civ. 3221(PGG)(MHD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 24, 2012
    ...Mem. at 5 (citing Weiner v. McGraw–Hill, Inc., 57 N.Y.2d 458, 464, 457 N.Y.S.2d 193, 196, 443 N.E.2d 441 (1982) (quoting Hamer v. Sidway, 124 N.Y. 538, 545, 27 N.E. 256, 257 (1891)))), but also—and, indeed, more relevantly with respect to the present case—for the principle that, “[f]ar from......
  • Burns v. City of Seattle, No. 78449-3.
    • United States
    • United States State Supreme Court of Washington
    • August 2, 2007
    ...v. Desmarais, 79 Wash.2d 432, 439, 486 P.2d 1074 (1971) (forbearance from a legal right is valid consideration); Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256, 257 (1891) ¶ 59 The ratepayers contend, though, that the contractual payment agreement is a transparent attempt to circumvent two "leg......
  • Granite Partners, L.P. v. Bear, Stearns & Co., No. 96 Civ. 7874(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 26, 1999
    ...or suffered by the party to whom the promise is made as consideration for the promise made to him.'" Id. (quoting Hamer v. Sidway, 124 N.Y. 538, 545, 27 N.E. 256, 257 Under traditional principles of contract law, the parties to a contract are entitled to make their own bargain, "even if the......
  • In re Eljay Jrs., Inc., Bankruptcy No. 87-B-10094 (HCB)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • October 27, 1989
    ...at 155 (4th ed. 1987) (hereinafter "Scott"). Third, "the property and the disposition of it must be definitely stated," Hamer v. Sidway, 124 N.Y. 538, 550, 27 N.E. 256, 258 (1891) or the corpus must be "sufficiently designated or identified to enable title thereto to pass to the trustee." B......
  • Request a trial to view additional results

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