CC Hamer v Sidway Case Brief Worksheet

Case Brief Worksheet – BUS G108I.
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II.
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usually not important, etc.
III.
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IV.
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Hamer v Sidway
[*538]
Louisa W. Hamer, Appellant,
v
Franklin Sidway, as Executor, etc., Respondent.
Court of Appeals of New York
Argued February 24, 1981
Decided April 14, 1891
124 NY 538
CITE TITLE AS: Hamer v Sidway
[*544] OPINION OF THE COURT
PARKER, J.
The question which provoked the most discussion by counsel on this appeal, and which
lies at the foundation of plaintiff’s asserted right of recovery, is whether by virtue of a contract
defendant’s testator William E. Story became indebted to his nephew William E. Story, 2d, on
his twenty-first birthday in the sum of five thousand dollars. The trial court found as a fact
that ‘on the 20th day of March, 1869, * * * William E. Story agreed to and with William E.
[*545] Story, 2d, that if he would refrain from drinking liquor, using tobacco, swearing, and
playing cards or billiards for money until he should become 21 years of age then he, the said
William E. Story, would at that time pay him, the said William E. Story, 2d, the sum of $5,000
for such refraining, to which the said William E. Story, 2d, agreed,’ and that he ‘in all things
fully performed his part of said agreement.’
The defendant contends that the contract was without consideration to support it, and,
therefore, invalid. He asserts that the promisee by refraining from the use of liquor and
tobacco was not harmed but benefited; that that which he did was best for him to do
independently of his uncle’s promise, and insists that it follows that unless the promisor was
benefited, the contract was without consideration. A contention, which if well founded, would
seem to leave open for controversy in many cases whether that which the promisee did or
omitted to do was, in fact, of such benefit to him as to leave no consideration to support the
enforcement of the promisor’s agreement. Such a rule could not be tolerated, and is without
foundation in the law. The Exchequer Chamber, in 1875, defined consideration as follows: ‘A
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valuable consideration in the sense of the law may consist either in some right, interest, profit
or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility
given, suffered or undertaken by the other.’ Courts ‘will not ask whether the thing which forms
the consideration does in fact benefit the promisee or a third party, or is of any substantial
value to anyone. It is enough that something is promised, done, forborne or suffered by the
party to whom the promise is made as consideration for the promise made to him.’ (Anson’s
Prin. of Con. 63.)
‘In general a waiver of any legal right at the request of another party is a sufficient
consideration for a promise.’ (Parsons on Contracts, 444.)
‘Any damage, or suspension, or forbearance of a right will be sufficient to sustain a
promise.’ (Kent, vol. 2, 465, 12th ed.)
Pollock, in his work on contracts, page 166, after citing the definition given by the
Exchequer Chamber already quoted, [*546] says: ‘The second branch of this judicial
description is really the most important one. Consideration means not so much that one party
is profiting as that the other abandons some legal right in the present or limits his legal
freedom of action in the future as an inducement for the promise of the first.’
Now, applying this rule to the facts before us, the promisee used tobacco, occasionally
drank liquor, and he had a legal right to do so. That right he abandoned for a period of years
upon the strength of the promise of the testator that for such forbearance he would give him
$5,000. We need not speculate on the effort which may have been required to give up the use
of those stimulants. It is sufficient that he restricted his lawful freedom of action within
certain prescribed limits upon the faith of his uncle’s agreement, and now having fully
performed the conditions imposed, it is of no moment whether such performance actually
proved a benefit to the promisor, and the court will not inquire into it, but were it a proper
subject of inquiry, we see nothing in this record that would permit a determination that the
uncle was not benefited in a legal sense. Few cases have been found which may be said to be
precisely in point, but such as have been support the position we have taken.
In Shadwell v. Shadwell (9 C. B. [N. S.] 159), an uncle wrote to his nephew as follows:
‘MY DEAR LANCEY—I am so glad to hear of your intended marriage with Ellen
Nicholl, and as I promised to assist you at starting, I am happy to tell you that I will pay to
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you 150 pounds yearly during my life and until your annual income derived from your
profession of a chancery barrister shall amount to 600 guineas, of which your own admission
will be the only evidence that I shall require.
‘Your affectionate uncle,
‘CHARLES SHADWELL.’
It was held that the promise was binding and made upon good consideration.
[*547] In Lakota v. Newton, an unreported case in the Superior Court of Worcester,
Mass., the complaint averred defendant’s promise that ‘if you (meaning plaintiff) will leave
off drinking for a year I will give you $100,’ plaintiff’s assent thereto, performance of the
condition by him, and demanded judgment therefor. Defendant demurred on the ground,
among others, that the plaintiff’s declaration did not allege a valid and sufficient consideration
for the agreement of the defendant. The demurrer was overruled.
In Talbott v. Stemmons (a Kentucky case not yet reported), the step- grandmother of the
plaintiff made with him the following agreement: ‘I do promise and bind myself to give my
grandson, Albert R. Talbott, $500 at my death, if he will never take another chew of tobacco
or smoke another cigar during my life from this date up to my death, and if he breaks this
pledge he is to refund double the amount to his mother.’ The executor of Mrs. Stemmons
demurred to the complaint on the ground that the agreement was not based on a sufficient
consideration. The demurrer was sustained and an appeal taken therefrom to the Court of
Appeals, where the decision of the court below was reversed. In the opinion of the court it is
said that ‘the right to use and enjoy the use of tobacco was a right that belonged to the plaintiff
and not forbidden by law. The abandonment of its use may have saved him money or
contributed to his health, nevertheless, the surrender of that right caused the promise, and
having the right to contract with reference to the subject-matter, the abandonment of the use
was a sufficient consideration to uphold the promise.’ Abstinence from the use of intoxicating
liquors was held to furnish a good consideration for a promissory note in Lindell v. Rokes (60
Mo. 249).
The cases cited by the defendant on this question are not in point. In Mallory v. Gillett
(21 N. Y. 412); Belknap v. Bender (75 id. 446), and Berry v. Brown (107 id. 659), the promise
was in contravention of that provision of the Statute of Frauds, which declares void all
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promises to answer for the debts of third persons unless reduced to writing. In Beau [*548]
mont v. Reeve (Shirley’s L. C. 6), and Porterfield v. Butler (47 Miss. 165), the question was
whether a moral obligation furnishes sufficient consideration to uphold a subsequent express
promise. In Duvoll v. Wilson (9 Barb. 487), and In re Wilber v. Warren (104 N. Y. 192), the
proposition involved was whether an executory covenant against incumbrances in a deed
given in consideration of natural love and affection could be enforced. In Vanderbilt v.
Schreyer (91 N. Y. 392), the plaintiff contracted with defendant to build a house, agreeing to
accept in part payment therefor a specific bond and mortgage. Afterwards he refused to finish
his contract unless the defendant would guarantee its payment, which was done. It was held
that the guarantee could not be enforced for want of consideration. For in building the house
the plaintiff only did that which he had contracted to do. And in Robinson v. Jewett (116 N. Y.
40), the court simply held that ‘The performance of an act which the party is under a legal
obligation to perform cannot constitute a consideration for a new contract.’ It will be observed
that the agreement which we have been considering was within the condemnation of the
Statute of Frauds, because not to be performed within a year, and not in writing. But this
defense the promisor could waive, and his letter and oral statements subsequent to the date of
final performance on the part of the promisee must be held to amount to a waiver. Were it
otherwise, the statute could not now be invoked in aid of the defendant. It does not appear on
the face of the complaint that the agreement is one prohibited by the Statute of Frauds, and,
therefore, such defense could not be made available unless set up in the answer. (Porter v.
Wormser, 94 N. Y. 431, 450.) This was not done.
In further consideration of the questions presented, then, it must be deemed established
for the purposes of this appeal, that on the 31st day of January, 1875, defendant’s testator was
indebted to William E. Story, 2d, in the sum of $5,000, and if this action were founded on that
contract it would be barred by the Statute of Limitations which has been pleaded, but on that
date the nephew wrote to his uncle as follows:
[*549] ‘DEAR UNCLE—I am now 21 years old to-day, and I am now my own boss, and
I believe, according to agreement, that there is due me $5,000. I have lived up to the contract
to the letter in every sense of the word.’
A few days later, and on February sixth, the uncle replied, and, so far as it is material to
this controversy, the reply is as follows:
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‘DEAR NEPHEW—Your letter of the 31st ult. came to hand all right saying that you had
lived up to the promise made to me several years ago. I have no doubt but you have, for
which you shall have $5,000 as I promised you. I had the money in the bank the day you was
21 years old that I intended for you, and you shall have the money certain. Now, Willie, I
don’t intend to interfere with this money in any way until I think you are capable of taking
care of it, and the sooner that time comes the better it will please me. I would hate very much
to have you start out in some adventure that you thought all right and lose this money in one
year. * * * This money you have earned much easier than I did, besides acquiring good habits
at the same time, and you are quite welcome to the money. Hope you will make good use of
it. * * *
W. E. STORY. ‘P. S.—You can consider this money on interest.’The trial court found as a
fact that ‘said letter was received by said William E. Story, 2d, who thereafter consented that
said money should remain with the said William E. Story in accordance with the terms and
conditions of said letter.’ And further, ‘That afterwards, on the first day of March, 1877, with
the knowledge and consent of his said uncle, he duly sold, transferred and assigned all his
right, title and interest in and to said sum of $5,000 to his wife Libbie H. Story, who thereafter
duly sold, transferred and assigned the same to the plaintiff in this action.’
We must now consider the effect of the letter, and the nephew’s assent thereto. Were the
relations of the parties thereafter that of debtor and creditor simply, or that of trustee [*550]
and cestui que trust? If the former, then this action is not maintainable, because barred by
lapse of time. If the latter, the result must be otherwise. No particular expressions are
necessary to create a trust. Any language clearly showing the settler’s intention is sufficient if
the property and disposition of it are definitely stated. (Lewin on Trusts, 55.)
A person in the legal possession of money or property acknowledging a trust with the
assent of the cestui que trust, becomes from that time a trustee if the acknowledgment be
founded on a valuable consideration. His antecedent relation to the subject, whatever it may
have been, no longer controls. (2 Story’s Eq. § 972.) If before a declaration of trust a party be
a mere debtor, a subsequent agreement recognizing the fund as already in his hands and
stipulating for its investment on the creditor’s account will have the effect to create a trust.
(Day v. Roth, 18 N. Y. 448.)
It is essential that the letter interpreted in the light of surrounding circumstances must
show an intention on the part of the uncle to become a trustee before he will be held to have
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become such; but in an effort to ascertain the construction which should be given to it, we are
also to observe the rule that the language of the promisor is to be interpreted in the sense in
which he had reason to suppose it was understood by the promisee. (White v. Hoyt, 73 N. Y.
505, 511.) At the time the uncle wrote the letter he was indebted to his nephew in the sum of
$5,000, and payment had been requested. The uncle recognizing the indebtedness, wrote the
nephew that he would keep the money until he deemed him capable of taking care of it. He
did not say ‘I will pay you at some other time,’ or use language that would indicate that the
relation of debtor and creditor would continue. On the contrary, his language indicated that he
had set apart the money the nephew had ‘earned’ for him so that when he should be capable of
taking care of it he should receive it with interest. He said: ‘I had the money in the bank the
day you were 21 years old that I intended for you and you shall have the money certain.’ That
he had set apart the money is further [*551] evidenced by the next sentence: ‘Now, Willie, I
don’t intend to interfere with this money in any way until I think you are capable of taking
care of it.’ Certainly, the uncle must have intended that his nephew should understand that the
promise not ‘to interfere with this money’ referred to the money in the bank which he declared
was not only there when the nephew became 21 years old, but was intended for him. True, he
did not use the word ‘trust,’ or state that the money was deposited in the name of William E.
Story, 2d, or in his own name in trust for him, but the language used must have been intended
to assure the nephew that his money had been set apart for him, to be kept without
interference until he should be capable of taking care of it, for the uncle said in substance and
in effect: ‘This money you have earned much easier than I did * * * you are quite welcome to.
I had it in the bank the day you were 21 years old and don’t intend to interfere with it in any
way until I think you are capable of taking care of it and the sooner that time comes the better
it will please me.’ In this declaration there is not lacking a single element necessary for the
creation of a valid trust, and to that declaration the nephew assented.The learned judge who
wrote the opinion of the General Term, seems to have taken the view that the trust was
executed during the life-time of defendant’s testator by payment to the nephew, but as it does
not appear from the order that the judgment was reversed on the facts, we must assume the
facts to be as found by the trial court, and those facts support its judgment.
The order appealed from should be reversed and the judgment of the Special Term
affirmed, with costs payable out of the estate.
All concur.
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Order reversed and judgment of Special Term affirmed.
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