Fink v. Cox

A father from from affection merely gave to his son, a promissory note for 1,000 dollars, payable to him or order, 60 days after date. In an action of assumpsit, brought by the son against the executor ofhis father, to recover the amount of the note, it was held, that the action could not be maintained: for it was not a donatio cauvá. mortis nor a valid gittof so much money, but a mere promise to give and blood or na» tural affection is not a sufficient consideration to support a simple executory con-

THIS was an action of assumpsit, brought to recover the amount of a promissory note, given by the testator, Alexander Fink, to his son, the plaintiff. The note, which was proved by the subscribing witness, was as follows: “New-York, 30th July, 1 ü 16. Sixty days after date, I promise to pay John L. Fin/c, or order, one thousand dollars, value re-his ceived. Alexander -f- FinkN The testator, at the time he gave the note to the plaintiff, declared that he gave it to him absolutely, and observed that the plaintiff was not so wealthy as his bro»her; and that the plaintiff and his brother had had a controveisy about a stall, &c., which were the reasons for his giving the note to the plaintiff. There was no actual consideration for the note ; and the witness understood it to be a gift from the testator to his son. The defendant gave in evidence the will of the testator, by which he devised all his personal estate to his sons, including the plaintiff, in equal proportions ; and after a devise to his daughter of a house and lot, the residue of his real estate was given to his executors in trust, to sell the same, and divide the proceeds equally among his children. The defendant also gave in evidence the plaintiff’s answer to a bill in Chancery, for a discovery filed by the executor, in which he stated that the note was freely given to him by the testator, and was founded on the consideration of natural love and affection. The cause was tried at the New-York sittings, in June, 15118, when a verdict was found for the plaintiff, for $1,12? and 30 cents, subject to the opinion of the Court, on a case containing the above facts. 1. This was an absolute gift from the testator to the plaintiff, not merely of a written paper, but of the value in money, or the fruits and effects of the note, acknowledging the value received. A chose in action is the subject of a valid gift. (Atk. 214.) The plaintiff might have negotiated the note for the amount, which'the defendant would have been obliged to pay. The plaintiff had a property in the note, and might have brought trover for it. (2 P. Wms.204.1 P. W. 441. 2 Leo. 111. Cro. Eliz. lb9. 2 Sir. 955. 2 Caines, 246. per Livingston, J. 3 Caines, Rep. 279. Chilty on Bills, 90. 2 Vescy, jun. 111. 120. 122. 22 Viner Abrf 3 93. pi. 3.) In Grangiac v. Arden, (10 Johns, Rep. 293.) where a father gave to his daughter a lottery ticket, which drew a prize, and the father after* wards said, he had given that ficket to his daughter and the prize money was hers ; it was held sufficient to support an action of assumpsit by the daughter, against her father, for the amount of the prize money which he had received. 2. Blood or natural affection, among near relations, is a good consideration; and is sufficient to support a contract against all persons, except creditors and bona fide purchasers. (2 Bl. Com. 444. Plowden, 305.) 1. No doubt, the note, or slip of paper on which the testator’s promise was written, was given to the plaintiff; and to that extent, it was a gift. But the object intended was money, not paper ; and it is essential to a valid gift, that the identical thing intended to be given, should be actually delivered. In Grangiac v. Arden, the lottery ticket was the means of obtaining the prize money from third persons. So, if the testator had delivered to the plaintiff the note of a stranger, it would have been a valid gift, for it was transferring the power to obtain the money. But here was a gift merely of a written promise to pay money at a future day. In Moble v. Smith, (2 Johns. Rep. 52.) this Court held that an actual and immediate delivery of the thing was essential to a valid gift; for it is not consummate and perfect until a delivery of the thing promised; and until then, the party may revoke his promise. ( 7 Johns. Rep. 26.) 2. In Pearson v. Pearson, (7 J ohns.Rep. 26.) and Schoon-maker v. Roosa, (17 Johns. Rep. 301.) it was decided that as between the original parties to a promissory note, the consideration might be inquired into, and if there is no consideration for the promise, it is a nudum pactum, and cannot be enforced at law. Suppose the plaintiff had sued his father, in his life time, on this note, could he have maintained the action, on the consideration of natural love and affection ? Suppose a parol promise by a father to his son, before witnesses, to give him a sum of money, can assump-sit be supported on such a promise? (Rannv. Hughes, 7 Term Rep. 350. n.) In Tate v. Hilbert, (2 Vesey, jun. 111.) which was the case of a gift of a check on a banker, and a promissory note ; the question was, whether it was to be considered as a donalio causa mortis, and the chancellor, who held it not to be a gift of that description, doubted whether an action at law would lie against the executor, on the note, for want of consideration j and if not, there could be no relief in equity. (Thorn v. Deas, 4 Johns. Rep. 84.) This was not a donatio causa mortis, though intended to be so: and if the action cannot be supported on the note, the testator’s intention will be defeated. By giving a note payable to order, he meant that his son should have full power to convert it into money, by negotiating it. If a moral obligation will support an express promise, why should not natural love and affection support such a promise ? Why is a moral obligation a sufficient consideration to support an express promise ? It is not money or value. It is, because it is just and right that such a promise should be supported. Again; a consideration beneficial to one, or injurious to the other, is sufficient. Blackstone, (2 Bl. Com. 444.) says, the satisfaction arising from natural affection, is equivalent to a benefit. The distinction between a good and a valuable consideration, has grown out of the statute of uses and the statute of frauds. Independent of those statutes, there is no ground for any such distinction. A good, as well as a valuable consideration, prevents the contract from becoming a nudum pactum, which is a contract without any consideration whatever. Plowden says, that “ a consideration proceeding from na= ture, is a sufficient consideration in our lawand a contract founded upon such a consideration, cannot be a nudum pac-turn. Why is natural affection a sufficient consideration to support a covenant to stand seised to uses ? It is because, that before the statute of uses, it would have been sufficient to raise an use. If blood or natural affection is sufficient consideration to raise an use, in regard to land, because it is not a donum gratuitum, why is it not sufficient to support a promise to pay money ?