11. HAOTNESS, ET AL. V. THOMPSON, ET AL. Nov. T. 1809, 5 Johns. N. Y. Rep. 160. S. P. VAN BRAMER V. COOPER, ET AL. 2 Johns. Rep. 279. Held by the court, Van Ness, J., that infancy is a personal It is a per privilege, of which the infant alone can take advantage, either sonal privi by plea or giving proof of it under the general issue. 12. lege. ROGERS AND WIFE V. HURD, June T. 1809, 4 Day's Conn. Per Cur. All contracts made by infants against their interest are void; and all contracts made by them with a semblance of advantage are voidable. 13. GARVEY, ads. COLCOCK, ET AL. May T. 1818, 1 Nott. & M'Cord's S. Ca. Rep. 231. S. P. BANK OF COLUMBIA v. PATTERSON, 7 Cranch. Rep. 305. between voidable contract. Per Cur. Cheaves, J. The general rule is, that a corpora A corpora tion aggregate, cannot do any act of importance without deed, tion may contract by that is, some intrument under seal, though there are many ex- an agent. ceptions to the rule. But at length it seems to have been estab lished that though a corporation cannot contract directly, except under seal, yet, it may vote, or appoint an agent, whose acts and contracts within the scope of his authority, will be binding on the corporation. 14. MEAD, ET AL. v. BUCKNER March T. 1831, 2 Miller's Lou. Rep. p. 284. and owners Per Cur. Porter, J. The contract for repairs in this instance The master was made with the master of the boat; and it is a well understood are both lia ble for re and familiar doctrine of commercial law, that in such cases the pairs of a master is personally bound. The parties contracting with him vessel made on a con tract with have a double remedy, they may sue him, or sue the owners on the master. a contract made with their agent. And a bro ker is an a gent for both parties 15. MERRITT V. CLASSON, 1815, 12 Johns. N. Y. Rep. 102. The question was, whether the contract in this case was sufficient to bind the defendant, it having been entered into by his agent, as it was not signed by either the agent or the defendant. Per Cur. Pratt, J. In the body of this memmorandum the name of J. Classon, the defendant, is written by his agent, whom he had expressly authorised to make this contract. The memmorandum, therefore, is equally binding on the defendant, as if he had written it with his own hand; and if he had used his own hand, instead of the hand of his agent, the law is well settled, that it is immaterial, in such a case, whether the name is written at the top, or in the body, or at the bottom of the memmorandum. It is equally a signing within the statute. 16. POTTAR V. YALE COLLEGE, June T. 1830, 8 Conn. Rep. 52. The right the contract Vide Peter v. Cocke, 1 Wash. Rep. 257; Talmage v. Chappel, et al. 16 Mass. Rep. 71; Buffum v. Chadwick, 8 Mass. Rep. 103. III. CONSIDERATION OF. (A) WHAT IS A GOOD CONSIDERATION.* *To support a contract there must be good consideration; there must be either a damage to the plaintiff, or advantage to the defendant; Cook v. Oxley, 3 T. Rep. 653. It must import either a benefit to the person for whom the thing is done, or a loss to the party who does it; Yates v. Hall, 1 T. Rep. 76. Giving a soldier leave of abscence at the instance of the defendant is a good consideration; Tyler v. Jones, 1 Ld. Raym. 312. A promise is nudum pactum in the absence of damage or advan 1. BURNET V. BISCOE, May T. 1809 4 Johns. N. Y. Rep. 234. The Court held in this case, that a consideration was as nenessary to an agreement reduced to writing, as if it remained in parol; Baily v. Freeman, 4 Johns. Rep.280. 2. There is no distinction, as to the considera tion, wheth er the con tract be by parol or by writing. And the con sideration WHITBECK V. WHITBECK, Aug. T. 1828, 9 Cowen's Rep. 266; S. P. SHEPARD V. LITTLE. 14 Johns. Rep. 210; BOWER V. BELL, 20 Johns. Rep. 338; PARKER V. CARTER, 4 Mumf. 273; MOSELY V. JONES. 5 Mumf. 23; HOSMER V. HOLLENBECK, 2 Days. Rep. 22. Per Cur. Sutherland, J. The rule which prohibits the con- may be en, tradiction by parol of what is expressed in a deed, is confined quired into to the parties, or privies to it. The rule does not apply to tween par the acknowledgment of the consideration, paid in a deed, even deed. between parties. 3. PACKARD V. RICHARDSON, March T. 1821. 17 Mass. Rep. 122. ULEN V. KITTREDGE 7 Mass. BRINK, 3 Johns. Rep. 210; LEONARD V. VREDENBURG, 8 Johns. Rep. 29. even be ties to a Assumpsit against defendant as guarantor of a promissory And to pay The declaration averred the plaintiff did forbear, &c. the debt of The consideration of a collateral agreement note. Per Cur. tage; Cook v. Oxley, 3 T. R. 652; Coggs v. Bernard, 2 Ld. Raym. 919. It is laid down that if an action be brought against a carpenter who had undertaken to build a house, for not building it, and it does not appear that he was to have any thing for building it, it is a nudum pactum, and the action cannot be sustained; ibid. and see Yelv. 50. The release of an equity of redemption; Thorpe v. Thorpe, 1 Ld. Raym. 662. Or the delivery of a note of a third person; Tuke's case, is a good considera another in considera tion of for bearance need not be And a pre judice to a party to whom the to pay the debt of another need not be in writing. The rule is said to be well established, that, a promise to answer for debt, default or miscarriage of another person, collateral to the principle contract, though made upon a sufficient consideration must be in writing. Vide Jackson v. Raynor, 12 Johns. Rep. 291; Peabody v. Harvey, 4 Conn. Rep. 119; Floyd v. Harrison, 1 Bibb. 76; Tilleson v. Nettleson, 6 Pickg. 509; Leland v. Creyon, 1 M'Cord's Rep. 10. 4. OVERSTREET V. PHILLIPS, Spring. T. 1823, 1 Little's Ky. Rep 123. S. P. VIOLETT V. PATTON, 5 Cranch's Rep. 152; SUMNER V. WILLAMS, 8 Mass. Rep. 200. Held by the Court, that a prejudice to a party to whom a promise is made, is a sufficient consideration to support a promise. And see Justice Story's remarks in Townsly v. Shumral, 2 promise is made is a Peter's Rep. 182; Price v. Winston, 1 Mumf. 63; Stocking v. considera Sage, 1 Conn. Rep. 519; Banks v. Mays, 3 Marsh. Rep. 435. sufficient tion. A mere moral obli 5. COOK V. BRADLEY, June T. 1828, 7 Conn. Rep. 57. S. P. v. MAHON, 19 Johns. Rep. 147; KILBOURN V. BRADLEY, Bradley had supplied Henry Cook's father, who was very gation is not poor, with necessaries, and sometime afterwards Henry Cook available as promised to pay the plaintiff for them. A considera tion for an express promise, it is only ef fectual in those cases where there It was contended, that Henry was under a moral obligation to the debt, and that it was a sufficient consideration to suppay port the contract to pay. Per Cur. Daggett, J. All the cases on this subject are was a previ carefully, and with just discrimination reviewed in a note in 3 ous legal ob B. & P. 249, and the true distinction taken. The law of this ligation. note has been recently adopted in the Supreme Court of NewYork, in the cases of Smith v. Ware, 13 Johns. Rep. 257, 289; tion; 7 Mod 13. And where a man before procuring a patent agreed to inform another of a secret, and bound hinself in a penalty not to avail himself, or take any advantage of the communication, the court said that an action lay for a breach of the contract; Smith v. Dickenson, 3 B. & P. 630. Suffering a person to do a beneficial act is a consideration; Taylor v. Jones, 1 Ld. Raym. 312. Natural affection is not a sufficient consideration to ground an action upon; Belt v. J. S. & wife, Crok. Eliz.756. 352 and in Edwards and wife v. Davis, 16 Johns. R 6. COOK V. BRADLEY, June T. 1828, 7 Conn. Rep. 57. S.. P. executod One Jonathan Cook was indebted to the plaintiff for necessa- A past and ries furnished, he being unable to provide for himself. Henry considera Cook, the defendant, and son of Jonathan Cook, being in opulent tion will not circumstances, engaged to pay the plaintiff, by an instrument in promise writing, in these words: "This may certify that the debt due from my father, Jonathan Cook, to Joel Bradley, I acknowledge to be for necessaries of life, and of such a nature, that I consider myself obligated to pay said Bradley Sixty Dollers towards the debt now due, provided my father does not pay it, &c." HENRY COOK. Per Cur. Daggett, J. I am satisfied, on a full view of the * .The cases are all reviewed in Wennell v. Adley, 3 B. & P. 249; this conclusion is arrived at: "an express promise therefore it should seem can only revive a precedent good consideration, which might have been enforced at law through the medi, am of an implied promise, had it not been suspended by some positive rule of law; but can have no original right of action if the obligation on which it is formed, never could have been enforced at law, though not barred by any legal maxim or statute provision. support & |