Mullanphy ex rel. O'Fallon v. Reilly

• Decision Date: 31 July 1844
• Parties: MULLANPHY, TO USE OF O'FALLON, v. REILLY.
• Court: Missouri Supreme Court

8 Mo. 675

MULLANPHY, TO USE OF O'FALLON,

v.REILLY.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

HUDSON & HOLMES, and LEONARD & BAY, for Plaintiff. 1. The benefit accruing to the defendant, as a distributee of the estate, from the increase of the assets consequent upon the plaintiff's taking her note and mortgage in lieu of the judgment, and forbearing to present the same for allowance against the estate until it should be barred, was a sufficient consideration. 1 Leigh's N. P. 27, and note c, 28, 29; 2 Blacks. Com. 445, n. 8. 2. The detriment to the plaintiff in abandoning his claim against the estate, and suffering his judgment to be barred by lapse of time, though no benefit whatever to the defendant, was a sufficient consideration to support this note and mortgage. 1 Leigh's N. P. 27; Halsa v. Halsa, 8 Mo. R. 307; Pellaus et al. v. Micross et al., 3 Burr, 1673. “Any damage to another, or suspension or forbearance of his right, is a foundation for an undertaking, and will make it binding, though no actual benefit accrues to the party undertaking.”--Yales, J.

Mr. Justice Wilmot's doctrine of nudum pactum, derived from the civil law in this case, is held erroneous in Rann v. Hughes, 7 Term R. 350, but the above point has never been questioned, it is believed; and it was confirmed by Ellenborough, C. J., in Jones v. Athburnham, 4 East, 463. Demurrer to the declaration, which did not allege that there were any assets; that the defendant was administratrix, or that there was any person liable to the plaintiff, whom he could forbear to sue, or that there was any “fund which could be the object of suit.” Demurrer sustained. But when there is some object of right; some object of suit; some party, who in respect of some fund, or some character known in the law is liable, then the forbearance is a sufficient consideration; so in this case. The evidence shows an estate with assets, there being at least some real estate. The forbearance of the plaintiff to pursue this fund was a detriment to him, though it should pay only one cent on the dollar. “If there be any consideration, the court will not weigh the extent of it.” Leigh's N. P. 26; 16 East, 372; Phillips v. Bateman, 1 Saund. 211, n. 2. Forbearance to sue an executor or administrator having assets is a sufficient consideration. 1 Saund. 210, n. 1. The giving up of a suit when the law is doubtful is a good consideration. Longbridge v. Darville 5 Barn. & Ald. 117. 3. The burden of proof being upon the defendant to establish an entire want of consideration, she was bound to show, not only that the estate was insolvent, but that it could not have paid anything upon the class of debts in which judgments were entitled to be placed. 4. The lien of a judgment upon real estate given by statute in this State is not lost by the death of the judgment debtor; and the discharge of that lien was a sufficient consideration to support this note and mortgage. 5. A note given by way of settlement, and to avoid the trouble, expense and risk of litigation, where the law is doubtful, and there is a difference of opinion, will not be held invalid for want of consideration. Longbridge v. Dorville, 5 Barn. & Ald., 117; 1 Leigh's N. P. 30; Brown v. Sloan, 6 Watts, 421. 6. Damage, trouble, inconvenience or prejudice to the promisee, constitutes a good consideration, as benefit to the promisor. 2 Peters' R. 182; 5 Cranch, 142; 8 Mass. 200; 6 Mass. 58; 4 Munf. 63; 2 Johns. Cases, 52; 1 Conn. R. 519; Chitty on Contracts, 25; Marks v. Bank of Missouri, 8 Mo. R. 316. Waiver of a legal right, at the request of another person, is a good consideration for a promise by him. 2 N. H. R. 97; 4 Pick. 97: 14 Johns. R. 466.

GAMBLE and BATES, for Defendant. 1. There was here no consideration for the note. Chitty on Contracts, 9; 3 Pick. 83; 7 Mass. R. 14. 2. All the instructions asked by the plaintiff, which assume that there was evidence that the note was taken in payment of the judgment against John P. Reilly, were properly refused, because there was no such evidence in the case, which could be left to the jury without misleading them. 3. All the instructions asked by plaintiff, which speak of the note as payment of the judgment, were properly refused; because they refer to the purpose of the defendant to pay the judgment, and do not depend upon the acceptance of the note as payment.

TOMPKINS, J.

This was a petition to foreclose a mortgage, by Bryan Mullanphy, suing for the use of John O'Fallon, executor of John Mullanphy, against Mary Reilly. The Court of Common Pleas of St. Louis county, in which the petitioner sued, gave judgment for the defendant; and to reverse that judgment, the petitioner, B. Mullanphy, sues out this writ of error. The defendant pleaded nil debet, and gave notice, that upon the trial, she would prove that the mortgagee gave no consideration for the making of the mortgage, and that he obtained the note from the mortgagor without consideration, and by imposing upon her erroneous belief that she owed the amount thereof, when, in fact, she owed him nothing. On the trial of the cause, the plaintiff gave in evidence the promissory note and the mortgage, of which, as no question is made as to their construction nothing more will be said.

The defendant produced and examined, as a witness, Bryan Mullanphy, the plaintiff. He testified, that he had obtained a judgment against John P. Reilly, in his life-time, for about the amount of the said note, and that said Reilly died leaving said judgment unsatisfied; that the defendant in this case, the widow of the said Reilly, and Mr. Joseph Walsh, frequently said the judgment should be paid; and finally, the defendant, in order to lift the cloud or incumbrance of the judgment from the estate of the deceased husband, and in lieu of said judgment, and the lien which it was supposed to create upon the real...