Wheaton v. Wilmarth

Wilde, J.

In this action of assumpsit on a promissory note made by George L. Wilmarth, payable to the defendant, and by her indorsed to the plaintiff, the principal ground of defence is, that the note was given in payment of a note signed by Dan Wilmarth, payable to the plaintiff, which had been barred by the statute of limitations; and so that the note in suit was void for want of consideration.

If the note in suit had been given by Dan Wilmarth, m his life time, after it had been barred by the statute of limitations, it would have been unquestionably a valid note.

Formerly, the idea prevailed, that an express promise, founded simply on an antecedent moral obligation, was a valid promise. And so the rule was laid down by Buffer, J. in Hawkes v. Saunders, Cowp. 294. “ The true rule,” he says, is, “ that wherever a defendant is under a moral obligation, or is liable in conscience and equity to pay, that is a sufficient consideration.” And in the same case, Lord Mansfield says, that “ where a man is under a moral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration; as if a man promise to pay a just debt, the recovery of which is barred by the statute of limitations ; or if a man, after he comes of age, promises to pay a meritorious debt contracted during his minority; or if a bankrupt, after his certificate, promises to pay the whole of his debts.”

Notwithstanding the general and comprehensive language of the rule laid down by these eminent judges, it must be understood as limited to the case decided, and to those cited in support of it, and to similar cases. And so are the authorities. The cases are collected in a note in 3 Bos. & Pul. 249, 252. The limitation there suggested seems to us to be well founded, and to be supported by the cases cited. “An express promise,” it is said, “ as it should seem, can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law, but can give no original right of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.’'' See also Yelv. (Amer. ed.) 41 b. note. Valentine v. Foster l Met. 520.

By the rule thus restricted, we are of opinion that the note sued was given on a good and sufficient consideration. George L. Wilmarth, the maker, was one of the heirs, and the administrator of the estate of Dan Wilmarth, the maker of the note in payment of which the note in suit was given ; and for years after taking out letters of administration he was liable to be sued thereon. George L. Wilmarth, therefore, was under a moral obligation and a former legal liability to pay the note of Dan Wilmarth, which was a sufficient consideration for the new note, within the rule laid down in Hawkes v. Saunders; and the decision in that case is directly in point. That was an action against an executrix, upon her promise to pay a legacy, in consideration of assets, and the consideration was held to be sufficient. It was after-wards decided, in Deeks v. Strutt, 5 T. R. 690, that no action at law could be maintained for a legacy; but that was an action on an implied promise, and had no reference to the case of Hawkes v. Saunders, which was founded on an express promise. The defendant was charged with a personal promise to pay the legacy, and not upon a qualified promise to pay as executrix; and the court say, “ that case did not at all involve in it the question, whether a legatee has a general right to sue for a legacy in that court.” The case of Deeks v. Strutt, therefore, does not at all apply to the case of Hawkes v. Saunders, although the contrary is erroneously stated in the note in 3 Bos. & Pul. before cited.

We consider, therefore, that the decision, in the case of Hawkes v. Saunders, is founded on a correct rule of law, which is confirmed by subsequent decisions, and is applicable to the present case. Story on Notes, § 185, and the cases there cited.

The cases cited to maintain the rule of law, that an executor or administrator, after a demand against him is barred by the statute of limitation, cannot revive the demand by a new promise, so as to bind the heirs, are not applicable. It does not follow that he may not bind himself. We therefore consider the note sued to be valid against the maker, and that, if the defendant’s indorsement was fairly obtained, the plaintiff would be entitled to judgment.

An objection was made to the sufficiency of the notice of non-payment to the defendant. But this objection was not pressed at the argument, and we think the notice sufficient. It was sufficient to inform the defendant that the note had been dishonored, and that the plaintiff looked to her for payment.

But we are of opinion that the defendant is entitled to a new trial, on the ground that the testimony of George L. Wilmarth should have been admitted. He, having been released by the defendant, was not interested, in her favor, in the event of the suit; and the case is not within the rule laid down in Churchill v. Suter, 4 Mass. 156.

The facts offered to be proved by him may be material, as they have a tendency to show that the defendant was induced to indorse the note by false and fraudulent pretences ; and if it should be so proved, to the satisfaction of a jury, the action must fail.

New trial granted.