Carroll v. Nixon

The opinion of the Court was delivered by

Kennedy, J.

— This action, being assumpsit, is founded upon a promise of indemnity, and the only question raised in it is, was the consideration sufficient in law to render the promise binding. The court below considered the consideration as past; and as Nixon, the party who made the promise of indemnity, derived no benefit whatever from it, this promise was therefore to be regarded as a nudum pacturh, upon which no action could be maintained for a breach of it. We, however, think the court were mistaken in the view which they took of the matter: for instead of the consideration being a past consideration, it appears to us to have been more properly a continuing one. It was only eight days after the execution of the bond by Sterret as the surety of Morris, that Nixon gave his promise of indemnity to Sterret for having done so. At the time of making this promise, it is most likely that no act whatever had been done by Morris in administering the estate of Kane, to which the condition of the bond had reference. But, at all events, little if anything could have been done, for it was a work or trust that could only be accomplished or administered in the progress and after the lapse of considerable time. Generally one year, at least, is allowed for such purpose, so that as long as the estate, mentioned in the condition of the bond, remained to be administered, Sterret, the surety, was liable to be damnified by the misconduct or neglect of Morris, the principal, in attending to and performing the same. This liability of the surety to be injured in future, was a continuing liability, and, to prevent his sustaining a loss thereby, may be fairly said to be the consideration for making the promise of indemnity by Nixon. If so, the consideration was a continuing consideration. Suppose,, for instance, that Morris himself, on the 12th of May after the execution, of the bond, had made a promise of indemnity to Sterret, his surety, similar to that which Nixon made on that day at Morris’s instance, would not the consideration have been considered as continuing and the promise binding? No doubt will be entertained but it would, just as clearly as in the case of a promise made by a tenant, after the commencement of his lease and during its continuance, to repair, &c. See 1 Chitty’s Civil Pl. 298, and the authorities there referred to. Then' if Morris himself would have been bound by his promise of indemnity, upon the ground that the consideration was continuing, it is difficult to perceive any good reason why a third person should not be bound who undertakes to do it for him. It may be said that Morris had an interest in administering the estate and might be a gainer by it, but that Nixon, the third person in this case, could not in any way be a gainer by it, and therefore Morris might be considered as bound by such promise when Nixon ought not. But although profit or gain by the party ^promising may be a sufficient consideration to support his promise, yet it is equally well settled that a detriment to the party to whom the promise is made is equally good. Jones v. Ashburnham (4 East 463). If the promise, in this case, had been made by Nixon to Sterret previously to the latter’s becoming surety, for the purpose of inducing him to do so, it is admitted that it would have been binding. But although it was not made previously with such view, yet it was evidently made for the purpose of inducing him to be contented, to rest easy, and remain surety, when by the law of Maryland he might have relieved himself from all detriment on account of such suretyship, at least in time to come, as soon as he conceived that he was in danger of suffering from it, by obtaining an order of the court to have the property delivered over to himself, unless Morris gave counter security. Thus Sterret was induced to remain surety for Morris at the special instance and request of Nixon, whereby he received great detriment; and why Nixon should .not indemnify him in the latter case as much as in the former, is not easily answered. For it can scarcely be questioned, that the injury done by Morris to Sterret as his surety was all effected after the promise of indemnity given by Nixon.

But there is another view, under which it appears to me, that this case might and ought to have been left by the court to the jury, if the plaintiff had not been entitled otherwise to recover, to say from the circumstances given in evidence, whether the promise of indemnity made by Nixon was not given in pursuance of a promise or assurance made, by Morris to Sterret previously to the latter’s becoming his bail, that he would procure the promise of. Nixon to keep him indemnified; and, if so, that the promise of Nixon was good and binding. For unless such assurance was given by Morris to Sterret, to induce him to become his bail, why should Morris, in the course of only eight days afterwards, almost as soon as it was practicable, have procured Nixon to give.his promise of indemnity ? It would have been idle and unnecessary in Morris to obtain from Nixon such promise of indemnity, unless he was bound to do so, in order to fulfil his previous promise to Sterret. Indeed it seems almost impossible to account rationally for his obtaining it upon any other ground, It is like the case of a precedent request, which is seldom proved, for in most cases, it necessarily arises 'out of the circumstances of the transaction. Per Serg’t. Williams, 1 Saund. 265, Note (1).

•Judgment reversed and a venire de novo awarded.