Kean v. Mitchell

• Decision Date: 26 April 1865
• Citation: 13 Mich. 207
• Court: Michigan Supreme Court
• Parties: Michael B. Kean v. David Mitchell

13 Mich. 207

Michael B. Kean v. David Mitchell

Supreme Court of Michigan

April 26, 1865

Heard April 5, 1865

Error to Oakland circuit.

Judgment of the court affirmed, with costs.

Charles P. Crosby, and Theodore Romeyn, for plaintiff in error:

The special counts are substantially defective, and are bad on error, for the reason that they contain no legal statements of a sufficient consideration.

1st. No consideration is inferable from the nature of the contract nor from the special facts set forth in the counts.

The contract is not one where the law infers or implies a consideration. Hence there is a necessity for stating one: 1 Chitty's Pleadings, 293, etc.

2d. The statement in the declaration of a "good and sufficient consideration," without any further specification, is a statement of a legal conclusion, and not of a traversable fact, and is erroneous in form and substance: 1 Chitty's Pleadings, 214, 293; 1 Greenleaf on Evidence, § 66, and notes.

3d. There being, in fact, no statement of any legal consideration, the declaration is bad on writ of error.

The objection is not cured by the judgment.

1st. There has been no application to amend, either in the court below or in this court, and there is nothing in the record by which this court can amend.

2d. The objection here is, not that there was an informal statement of a consideration, which, by reasonable construction, would have supported the promise, but that there was no statement of any consideration. This defect did not require a special demurrer. It is not within the statute of amendments: 2 Comp Laws, p. 1201; Hoard v. Little, 7 Mich. 470.

M. E. Crofoot, for defendant in error:

If the defendant desired to take any advantage of the insufficiency of this averment, he should have done so by demurrer.

The averment is that "the defendant, for a good and a valuable consideration."

Is this averment admitted as stated--a sufficient statement of a good and valid contract?

We think it is; one of the elements of a contract is a consideration to support a promise, although in the old authorities this was omitted as an essential of the definition: Parsons on Cont., vol. 1, 7; I bid., vol. 2, 295, 297.

A good consideration is one founded on motives of generosity, prudence and natural duty: 2 Blk. Com., 297; 1 Parsons on Cont., 358.

A valuable consideration is, in some way, pecuniary, or convertible into money: 1 Parsons on Cont., 358.

When no consideration is stated in the declaration, etc., the defendant may demur, move in arrest, or support error: 1 Chit. Pleadings, 300, 301; 7 T. R., 348; 4 Barn. and Cress., 345; 6 D. and R., 438, S. C.

But when the words in which the consideration is stated are defective, informal or uncertain, the declaration will only be bad on special demurrer, and after verdict a defective statement of the consideration will be aided, provided that, by a reasonable construction of the whole declaration, it sufficiently appears that there was a consideration capable of supporting the promise: 1 Chit. Pleadings, 301; Shaw v. Redmond, 11 Serg. & Rawle, 27, 30; 4 East. 455, 464, 465; 13 East. 102; Ward v. Harris, 2 B. & P., 265; 1 B. & P. (New R.), 172; 4 East. 464; 2 Bing. 464; McClel. & Y., 205.

Cooley, J. Christiancy, J., Campbell, J. concurred. Martin, Ch. J. was absent.

OPINION

Cooley J.:

Mitchell brought suit against Kean in assumpsit, and declared specially that defendant, on a day and at a place named, "for a good and valuable consideration, then and there paid by said plaintiff to said defendant," bargained and sold to plaintiff certain goods and chattels, and then and there, "for the consideration aforesaid," promised and agreed to deliver said goods and chattels to said plaintiff, when there unto afterwards requested. Breach, a neglect and refusal to deliver. The declaration also contained the common counts. The defendant pleaded the general issue.

On the trial, the defendant objected to the introduction of any evidence under the special counts, for the reason that no consideration was set forth therein for the defendant's promise; but the court overruled the objection, and admitted the evidence offered, and plaintiff had a verdict. The sole question before us is whether the court was correct in this ruling.

In declaring upon simple contracts, except in those cases where the contracts themselves import a consideration, the rules of pleading require the consideration to be set forth. When that which is stated is clearly insufficient or illegal, the defendant may either demur, or move in arrest of judgment, or support a writ of error. But when the mode in which the consideration is stated is defective, informal or uncertain, the declaration will be bad upon special demurrer; but after verdict, a defective statement of the consideration will be aided, provided, by a reasonable construction of the whole declaration, it sufficiently appears that there was a consideration capable of supporting the promise: 1 Chit. Pl., 300.

The consideration is required to be set forth "that the court may see that it is of that kind and nature to sustain the promise:" Lansing v. McKillip, 3 Caines 287. It "should be distinctly set out, that the court may judge of it:" Whitall v. Morse, 5 S. & R., 361. And the declaration should "state the whole consideration expressly and formally, correspondent with the facts in the case, and co-extensive with the contract:" Hendrick v. Seely, 6 Conn. 176; Treadway v. Nicks, 3 McCord 122.

It is obvious that, if the plaintiff may allege, in general terms, that there was a consideration, without specifying in what it consists, it will be impossible for the court to say, from the declaration, whether that which the plaintiff considers a valid consideration is, in fact, one which will support an assumpsit. And it has been held that to allege that the defendant, being indebted to the plaintiff in a sum specified, in consideration thereof, promised to pay, etc., was not sufficient to support a judgment by default, because the cause or consideration upon which the debt was founded was not set forth: Beauchamp v. Bosworth, 3 Bibb 115. See, also, Maury v. Olive, 2 Stew. 472, where a similar declaration was held bad on general demurrer. In Parker v. Crane, 6 Wend. 648, a declaration for that the defendant, in consideration that the plaintiff had, before that time, sold and conveyed to the defendant a certain farm, undertook and promised, etc., was held bad on demurrer to a plea, because the consideration being past, it was not alleged to have been done at the request of the party promising. And in Goldsby v. Robertson, 1 Blackf. 247, a special verdict, which set forth the consideration in the same form, was held insufficient to authorize a judgment.

In the present case, the declaration simply avers that the promise was made for a good and valuable consideration. It does not undertake to state in what that consideration consists, and is, therefore, more clearly defective than those in the cases cited. If it is sufficient for the party to state generally that the defendant promised, for a valuable consideration, I see no reason why he should not be allowed to state, in terms but a little more general, and without mentioning a consideration, that the defendant made a valid contract since a valid contract...