Opinion
(December Term, 1857.)
Where B promised to procure the money or a draft of a merchant who bought A's tobacco, and to credit a bond which he (B) held on A, and negligently failed to do so, it was Held that A was entitled to recover.
Inconvenience or loss, arising to a party from the breach of a promise, constitutes a consideration for the promise.
THIS was an action of ASSUMPSIT, tried before SAUNDERS, J., at the Spring Term, 1857, of Caswell Superior Court.
Morehead, for the plaintiff.
Hill and Fowle, for the defendant.
A full statement of the main facts of this case, is contained in the report of December Term, 1855, 3 Jones' Rep. 195. The only material change in the statement is, that Hudson's deposition was again taken, and he swore, that in the trade with the witness, for Watkins' tobacco crop, the defendant said, "all he was afraid of was, that Lewis Watkins would not deliver the tobacco in time, and if he (Watkins) would do that, he, defendant, would see to the balance of the transaction." He also deposed, that Watkins did deliver the tobacco in time.
Upon the trial, his Honor charged the jury, that if they collected from the testimony, that the defendant agreed to attend to the getting of the money or draft, and failed to do it, then the verdict should be for the plaintiff; but if the defendant honestly endeavored to have the business settled, and failed to have it closed, by the refusal of the purchaser, then their verdict should be for the defendant. Defendant excepted. Verdict and judgment for the plaintiff. Appeal by the defendant.
When this case was before us, December Term, 1855, 3 Jones' Rep. 195, it was decided against the plaintiff, because there was no proof that the defendant had promised to procure the draft. The omission is now supplied. The verdict finds the fact, that the defendant agreed to get the money or draft, and had failed to do so. This disposes of the case so far as that point is concerned.
The defendant's counsel then insisted, that the promise was voluntary, nudum pactum, and would not support the action. Brown v. Ray, 10 Ire. Rep. 72, is decisive of that question. "To make a consideration, it is not necessary that the person making the promise, should receive, or expect to receive, any benefit. It is sufficient if the other party be subjected to loss or inconvenience." An undertaking to do any thing, is a sufficient consideration, provided it is acted upon, either by the one party's "entering upon the trust," or by the other's relying upon him to do so, provided loss is thereby sustained. Here, the plaintiff trusted to the defendant's promise to get the draft. But for the promise, he would have attended to the business himself. So, he has suffered loss by a breach of the defendant's promise which he relied on.
The defendant's counsel further insisted, that there is error in respect to the damages, for that it ought not to have been the value of the tobacco, but only the value of the draft. The record does not present this question. No instructions were asked for, or given, in regard to the measure of damages, and the question was not raised. There is no error.
PER CURIAM, Judgment affirmed.