Kansas Manufacturing Company v. Gandy

• Decision Date: 01 July 1881
• Citation: 9 N.W. 569,11 Neb. 448
• Parties: KANSAS MANUFACTURING COMPANY, APPELLANT, v. MARGARET GANDY AND LEMUEL J. GANDY, APPELLEES
• Court: Nebraska Supreme Court

9 N.W. 569

11 Neb. 448

KANSAS MANUFACTURING COMPANY, APPELLANT, v. MARGARET GANDY AND LEMUEL J. GANDY, APPELLEES

Supreme Court of Nebraska

July 1, 1881

APPEAL by plaintiff from a decree rendered in the district court for York county, dismissing plaintiff's suit for the foreclosure of a mortgage.

AFFIRMED.

France & Sedgwick and Lamb, Billingsley & Lambertson, for appellant. The answer does not set up any defense, consequently the plaintiff is entitled to a decree on the pleadings; it is defective in two essential particulars: 1st, it contains no plea of coverture, and 2d, it admits the execution and delivery of the deed or mortgage, in which case the consideration cannot be enquired into for the purpose of avoiding it. Our position and claim is, that coverture must be pleaded, and that a bond and mortgage or any instrument under seal implies a consideration, and none need be proved and it is good if it is shown that none was given. And neither courts of law or equity will allow the consideration to be inquired into for the sake of declaring the instrument void for want of consideration, but they will for the purpose of ascertaining what is due upon it. Farnum v Burnett, 21 N.J.Eq. 89. Jamison v. Jamison, 3 Wharton, 457. Brown v. Kahnweiler, 28 N.J.Eq 313. Bank of Muskingum v. Carpenter, Wright, Ohio, 729. Cooley v. Hobert, 8 Iowa 358. Comegys v. Clarke, 44 Md. 108. Haffey v. Carey, 73 Pa. 432. Wolf v. Van Metre, 23 Iowa 397. Croft v. Bunster, 9 Wis. 507.

W. T. Scott and W. W. Giffen, for appellees. The mortgage is void for want of any new consideration. 1 Jones on Mortgages, sec. 615. 4 Wait Actions and Defenses, 554, sec. 6. Davidson v. King, 51 Ind. 224.

OPINION

MAXWELL, CH. J.

This action was instituted in the district court of York county to foreclose a mortgage executed by Margaret C. Gandy upon her separate estate to secure a note executed by her husband. The defense is want of consideration. The court below found the issues in favor of the defendant and dismissed the action. The plaintiff appeals to this court.

It appears from the bill of exceptions that the defendant, Lemuel J. Gandy, had purchased wagons from the plaintiff to the amount of about $ 6,000, giving his notes therefor, and that the note which the mortgage was given to secure was for a portion of the wagons. The note is as follows:

"$ 464.00 YORK, NEB., Sept. 16th, 1878.

"Twelve months after date I promise to pay to the order of the Kansas Manufacturing Company four hundred and sixty-four dollars, at McWhirter's Bank, with exchange, value received, with interest at 12 per cent per annum from January 16, 1879, until paid.

"L. J. GANDY.

"Due Sept. 19, 1879."

The mortgage to secure this note was executed on the seventh day of December, 1878.

Blackstone says: "A consideration of some sort or other is so absolutely necessary to the forming of a contract that a nudum pactum, or agreement to pay anything on one side without any compensation on the other, is totally void in law; and a man cannot be compelled to perform it. As, if one man promises to give another £ 100, here there is nothing contracted for or given on the one side, and therefore there is nothing binding on the other. And however a man may or may not be bound to perform it in honor or conscience--which the municipal laws do not take upon them to decide--certainly those municipal laws will not compel the execution of what he had no visible inducement to engage for; and therefore our law has adopted the maxim of the civil law that ex nudo pacto non oritur actio. But any degree of reciprocity will prevent the pact from being nude." 2 Blackstone's Com. , 445.

Kent says: "It is essential to the validity of a contract that it be founded on a sufficient consideration. It was an early principle of the common law that a mere voluntary act of courtesy would not uphold an assumpsit, but a courtesy showed by a previous request would support it. There must be something given in exchange, something that is mutual, or something which is the inducement to the contract, and it must be a thing which is lawful and competent in value to sustain the assumption. A contract without consideration is a nudum pactum, and not binding in law, though it may be in point of conscience." 2 Kent's Com., 463.

Patteson J., in Thomas v. Thomas, 2 QB 859, says: "A consideration means something which is of some value in the eye of the law moving from the plaintiff. It may be of some benefit to the...