[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 598 The defendant's intestate made the note upon which the action was brought after he had taken by mistake a fatal dose of aconite. He was a physician, and was conscious of his approaching death, which occurred about two hours after the note was made. Some evidence was given as to the state of mind of the deceased, and upon the question of undue influence, but it was rather slight, and was properly submitted to the jury. The same remark is true as to the question of delivery. The only point insisted upon in this court, relates to the consideration. The note is for $10,000, and expresses the consideration to be for services rendered. The plaintiff had been the housekeeper for the defendant, who was a bachelor, for seven or eight years, and the latter was indebted to her for her services in some amount, and the evidence tended to prove that at some time during the service it was agreed that the amount of compensation should be left to the intestate. Mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud, or undue influence, is not a defence to a note. It is not necessary that the consideration of a note shall be equal in pecuniary value *Page 599 to the obligation incurred. If no part of the consideration was wanting at the time, and no part of it subsequently failed, although inadequate in amount, the note is a valid obligation, while a want or failure of consideration, in whole or in part, is a good defence to the whole note, or to the extent of such failure. (Johnson v. Titus, 2 Hill, 606; 21 Wend., 558.) This case, in its principal features, is quite analogous to the case of Worth v. Case (42 N.Y. 362). There, as here, the note expressed the consideration to be for services rendered, and although the amount was more largely in excess of the pecuniary value of the services than in this case, the action was sustained by this court, and the reasoning in the opinions is applicable to the facts of this case. If the intestate chose to pay for the services rendered a much larger sum than they were worth, he had a right to do so. The note was not a gratuity or gift. There is no standard whereby courts can limit the measure of value in such a case, and an obligation is not wanting even partially in consideration, because the value is less than the obligation. A note for a thousand dollars given for a horse confessedly worth but one hundred, cannot be successfully defended in whole or in part, on the ground of a want or failure of consideration.
It is claimed that the note, in large part at least, was a testamentary bequest, and intended as such, and that for that reason the action was not maintainable to the extent that such was the intent. We have examined the various requests to charge upon this question, and are of opinion that, taking the charge together, it was as favorable to the defendant as he had a right lawfully to ask. The judge charged explicitly, that if the real intent and purpose of the deceased, and the real character of the transaction, was under the form of this note of $10,000, to go beyond the payment of actual indebtedness to the plaintiff, and in fact to make a provision for, or gift to her, to that extent, the note is void, and the plaintiff could not recover therefor. Afterwards a request was made that if the deceased intended to go beyond his actual indebtedness, that the jury should find for the amount of such indebtedness, and not that *Page 600 intended as a bequest. This was declined, and an exception taken. This request is somewhat equivocal. If it is the same as that before charged, then the refusal was not error. In that case it was a refusal to repeat the same charge. If it was intended as a request that the jury should find the amount which they should determine was the actual indebtedness, without the qualification in the first part of the charge in respect to an intended bequest, then it was untenable for the reasons before expressed. The intestate declared in the note, that it was given for services rendered. If that was true the note was valid, although the amount was larger than the services were worth. The court charged, in substance, that if the note was used as a mere subterfuge for a testamentary bequest, the plaintiff could not recover to the extent that it was so intended. This went as far for the defendant as the law would justify, but it is quite different from instructions that the jury might find what the real indebtedness ought to be, and regard the balance as a bequest. The latter proposition in effect would deprive the intestate of the power to determine the value of the services for himself, which, as we have seen, he had a right to do.
The judgment must be affirmed.
All concur.
Judgment affirmed.