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Hamer v. Sidway
124 N.Y. 538, 27 N.E. 256 (Ct. of Appeals, N.Y. 1891)
Parker
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. 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 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, 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.
. . .
The order appealed from should be reversed and the judgment of the
Special Term affirmed, with costs payable out of the estate.