Argued April 18, 1890
Decided June 24, 1890
Wm. H. Robertson for appellant. Walter Edwards for respondent.
The question presented for decision by this appeal is whether the instrument upon which the action was brought is supported by a consideration that the law recognizes as sufficient. "A valuable consideration may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other." (3 Am. Eng. Cyclopedia of Law, 831; Currie v. Misa, L.R. [10 Ex.] 162; Chitty on Cont. [9th Am. ed.] 29; 2 Kent's Comm. 465.)
It is not essential that the person to whom the consideration moves should be benefited, provided the person from whom it moves is, in a legal sense, injured. The injury may consist of a compromise of a disputed claim or forbearance to exercise a legal right, the alteration in position being regarded as a detriment that forms a consideration independent of the actual value of the right forborne.
Thomas Wright, as the sole heir at law and next of kin of the decedent, would have inherited the entire estate if he had succeeded in his effort to defeat the probate of the will. He was, therefore, "particularly interested in setting aside the will" within the meaning of that phrase as used in the case of Seaman v. Seaman (12 Wend. 381), which we regard as analogous to this, and which has been repeatedly followed. ( Palmer v. North, 35 Barb. 293; Bedell v. Bedell, 3 Hun, 583; Hall v. Richardson, 22 id. 447.)
It will be presumed that the testator left assets of some value, as the evidence tended to show that there was property, although not enough to pay the legacies, and the trial court mentioned "the property" and "the estate" of Lewis T. Wright in the findings. Moreover, as the agreement recites a consideration, the burden of proof was on the defendant to show that there was none, and if that depended upon the allegation that the testator left no property, the burden extended to proof of that proposition also. The withdrawal of the objections to probate of the will, therefore, at the special request of the defendant, was the forbearance of a legal right and constituted a consideration sufficient to support a promise by him, even if he was to receive no benefit whatever. "Whether he would have succeeded in the litigation," as was said in the Seaman Case, "is not the test. * * * It is enough that he yielded to his adversaries the right he possessed to contest the will. That he has done, and the compromise itself proves prima facie an acknowledgment by the defendant that there was color for his objection." (p. 381.) The court will not ask "which party would have succeeded," for that would involve the trial of the issue that was compromised, and the object of the law in encouraging compromizes would thus be defeated.
The consideration did not rest upon any advantage to the defendant, but upon the abandonment by Thomas Wright of his position as a contestant. By discontinuing his effort to overthrow the will, he relinquished a right secured to him by law and lost his chance of inheriting the estate. He did this at the request of the defendant, who promised to pay for it. If the form of the promise had been to pay directly to Thomas Wright, no reason is perceived why it could not have been enforced. As the arrangement was made with him, and the consideration was furnished by him, the fact that the money was made payable by his direction to the plaintiff does not render the promise void. The plaintiff became his appointee, and, upon receiving from him the written agreement or evidence of the promise, it became his donee, and thus privity was established between the parties to the action. This is not the case of a mere stranger who attempts to intervene and claim the benefit of a contract to which he is not a party, as in many of the authorities relied on by the appellant, because the promise was made directly to the plaintiff, and there was a clear intention on the part of the person furnishing the consideration to secure a benefit to the plaintiff. If the sum in question had been made payable to Thomas Wright, he could have given the claim to the plaintiff, whose title would thus have been perfect, and why could he not make the gift by causing the promise to be made directly to the plaintiff? The intention of the parties should not be defeated by releasing the defendant from his promise after he had received the consideration therefor, simply on account of the form of the transaction, which violates no statute, nor any rule of public policy.
If A. sells a horse to B. for $100, and B. gives in payment therefor a note for that amount drawn payable to C. at A.'s request, and A. delivers the note to C., the latter can enforce it against the maker. The case supposed differs in no essential particular from that under consideration. As recently held by this court, after a careful review of the authorities, a party for whose benefit a promise is made may sue in assumpsit thereon, even if the consideration therefor arose between the promissor and a third person. ( Todd v. Weber, 95 N.Y. 181, 194.)
Without elaborating our reasons, we think that the order appealed from should be affirmed, and that judgment absolute should be rendered against the defendant, with costs.
All concur except POTTER, J., dissenting.
Order affirmed and judgment accordingly.