On trial the question was whether the defendant (who is a son of the intestate) had been discharged from the payment of the money due on the note. For the purpose of showing this, the defendant offered evidence that the intestate, just before his death, said (to a witness whom he called upon to take notice of his declaration) that the defendant should never pay any part of the amount of the note, for he was an industrious man and would take care of what he had. This evidence was objected to by the plaintiff's counsel, but received by the court. The defendant further gave in evidence that the intestate, in his lifetime, said that he had induced the defendant to purchase the tract of land, to pay for which the money secured by the note was loaned, by which purchase he had embarrassed himself; that he had received of the defendant some pork, flour, and beef; that the defendant had rendered him many valuable services; that he had brought the defendant's negro blacksmith to Warrenton against the wishes of defendant, where he died; and that, therefore, the defendant should not pay any part of the money. It appeared in evidence that the note was found among the intestate's papers after his death, with several credits for (557) interest and part of the principal indorsed. *Page 298
The presiding judge instructed the jury that a mere declaration by the intestate that the defendant should not pay the money due on the note, unless accompanied with the destruction of the note, would not discharge the defendant; but if they found the facts to be that the intestate had induced the defendant to purchase the land mentioned and thereby involved him; that the intestate had received the money, flour, pork, and beef of the defendant, and the defendant had rendered to him valuable services, and that he had brought the defendant's blacksmith to town against his wishes, where he died; and that the intestate, in consideration thereof, declared that the defendant should not pay the said money, the defendant would thereby be discharged from the payment.
Under these instructions the jury found a verdict for the defendant. A motion was made for a new trial on the ground that improper evidence had been received, and also that the jury had been misdirected; and the motion being denied and judgment given for the defendant, the plaintiff appealed to this Court. It is very evident that the testator's having said that the defendant should never pay any part of the note was not obligatory on him, unless it was founded on a consideration yielding a benefit to him, or attended with trouble or prejudice to the defendant. The motives inducing him to make this declaration are of different characters, and should have been discriminated to the jury according to their legal operation. The testator's having induced the defendant to purchase the land by which he became involved does not from a valid consideration; for understanding it as proceeding from advice honestly given, (558) although the event might have been unfortunate, he thereby incurred no moral obligation, and such a promise could not become legally obligatory on him. His having brought the defendant's blacksmith to Warrenton against the wishes of his master is subject to the same construction, for the testator must be understood, from the statement of the evidence, to have acted according to the best of his judgment for the defendant's interest, and as it does not appear that it was done against the consent of his owner, the accident of the negro's death could not make the testator liable either in law or conscience. The promise not to require payment of the note, so far as it was founded on these two considerations, was perfectly gratuitous and could only be enforced by applying to the feelings and bounty of the testator, but could in no view be made the subject of an action. But he further acknowledged that the defendant had rendered him many valuable *Page 299 services and had delivered him various articles of produce. These would form the proper subject of a set-off, could their amount be ascertained. May not the credit on the note have been in part for them? That these alone did not, in the testator's opinion, amount to a full payment of the not seems certain from his adding the other motives to them. The true inquiry for the jury to have made was whether the note had been paid off in the whole or in part, or whether the testator had promised that he would not require payment on such considerations as were valid in law. The fact was plainly a question of fact; and on the latter the jury should have been instructed that all the considerations were insufficient, except the produce delivered and the services performed.
In this opinion the other judges concurred.
PER CURIAM. New trial.
Cited: Hatchell v. Odom, 19 N.C. 308; Little v. McCarter, 89 N.C. 237.
(559)