Mcelven v. A. M.Sloan & Co.

• Decision Date: 31 January 1876
• Citation: 56 Ga. 208
• Court: Georgia Supreme Court
• Parties: George E. McElven et al, plaintiffs in error. v. A. M.Sloan & Company, defendants in error.

56 Ga. 208

George E. McElven et al, plaintiffs in error. v. A. M.Sloan & Company, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Promissory notes. Consideration. Parent and child. Before Judge Wright. Mitchell Superior Court. May Term, 1875.

Reported in the opinion.

B. B. Bower; D. A. Russell; O. G. Gurley, for plaintiffs in error.

Fleming & Rutherford, by Jackson & Lumpkin, for defendants.

Jackson, Judge.

A. M. Sloan & Company sued the two McElvens on a promissory note, the consideration of which appeared on its face to be "the payment of the principal of a note in favor of J. M. Ponder, against my father, R. D. McElven." The McElvens defended on the ground that the note was without consideration and did not bind them. They set up in their plea the fact that their father owed Ponder the amount of this note in the year 1856; that in 1868 he went into bankruptcy; that since that time he died, and that his estate was insolvent; that when, in 1871, they made the note sued on, Ponder, to whom it was made payable, was dead, and that the real transaction was with Sloan & Company, and they received the note as soon as made, and knew all about it, and their counsel persuaded defendants to give the note sued on. The court struck the plea, on motion, and thisis the error complained of.

*It will be seen that the whole question is whether the facts make out a good consideration in law to support the note, or whether it is nudum pactum and void. In other words, are the sons morally bound to pay the debts of a bankrupt, deceased, and insolvent father, who left no estate to come into their hands? It would certainly be quite honorable for sons to do so; it would evince a high tone of veneration for their father, a very nice and delicate sense of honor in themselves, but we hardly think that a strong moral obligation rests upon them to do so. The Code declares that "a good consideration is such as is founded on natural duty and affection, or on a strong moral obligation: " Code, section 2741. If this note had been givenfor medical services rendered the deceased parent, or for his support or clothing, or for some similar benefaction rendered to him, either or any such consideration we think would amount to natural duty and affection, and would also lay a strong moral obligation upon the sons to reimburse the benefactor of the parent, and would support such a promise to pay. If these sons had received a share of their father\'s...