with Ellen Nicholl, and, as I promised to assist you at starting, I am happy to tell you that I will pay 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 receive or require. Your affectionate uncle. Charles Shadwell." It was held that the promise was binding, and made upon good consideration. In Lakota v. Newton ( an unreported case in the Superior Court of Worcester, Mass.) the complaint averred defendant's promise that "If you (meaning the plaintiff's) will Leave off drinking for a year I will give you $100.00," 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, 89 Ky. 222, 12 S. W. 297, 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 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 order appealed from should be reversed and the judgment of the Special Term affirmed, with costs payable out of the estate.

All concur.

Order reversed and judgment of Special Term affirmed.

BLOOD OR NATURAL AFFECTION IS NOT A SUFFICIENT CONSIDERATION TO SUPPORT AN EXECUTORY

CONTRACT

FINK V. Cox, EXECUTOR

18 Johns. (N. Y.) 145 (1820)

Action of assumpsit brought to recover amount of a promissory note given by the testator, Alexander Fink, to his son, the plaintiff. Verdict for plaintiff.

SPENCER, J. The question in this case is, whether there is a sufficient consideration for the note on which this suit is founded. It appears from the declaration of the testator when the note was given, that he intended it as an absolute gift to his son, the plaintiff; alleging that the plaintiff was not so wealthy as his brothers, that he had met with losses, and that he and his brothers had had a controversy about a stall. Such were the reasons assigned for his giving the note to the plaintiff. There can be no doubt that a consideration is necessary to uphold the promise, and that it is competent for the defendant to show that there was no consideration.

Schoonmaker v. Roosa and DeWitt, 17. Johns Rep. 301. The only consideration pretended, is that of natural love and affection from a father to a child; and if that is a sufficient consideration, the plaintiff is entitled to recover, otherwise not.

It has been strongly insisted that the note in the present case, although intended as a gift, can be enforced on the consideration of blood. It is, undoubtedly, a fair presumption that the testator's inducement to give the note sprang from parental regard. The consideration of blood, or natural love and affection, is sufficient in a deed against all persons but creditors and bona fide purchases; and yet there is no case where a personal action has been founded on an executory contract, where a consideration was necessary, in which the consideration of blood or natural love and affection, has been held sufficient. In such a case the consideration must be a valuable one, for the benefit of the promisor, or to the trouble, loss or prejudice of the promisee. The note here manifested a mere intention to give the $1,000. It was executory, and the promisor had a locus poenitentiae. It was an engagement to give and not a gift. None of the cases cited by the plaintiff's counsel maintain the position, that because a parent, from love and natural affection, engages to give his son money or chattel, that such a promise can be enforced at law.

Judgment for defendant.

A BURDEN INCURRED AT THE REQUEST OF THE OTHER PARTY IS A SUFFICIENT CONSIDERATION

DEVECMON V. SHAW AND DEVRIES, EXECUTORS

69 Maryland, 199 (1888)

BRYAN, J. Johns Semmes Devecmon brought suit against the executors of John S. Combs, deceased. He declared in the common courts and also filed a bill of particulars. After judgment by default, a jury was sworn to assess the damages sustained by the plaintiff. The evidence consisted of certain accounts taken from the books of the deceased, and testimony that the plaintiff was a nephew of the deceased, and lived for several years in his family, and was in his service as clerk for several years. The plaintiff then made an offer of testimony, which is thus stated in the bill of exceptions: "That the plaintiff took a trip to Europe in 1878, and that said trip was taken by said plaintiff, and the money spent on said trip was spent by the said plaintiff at the instance and request of said Combs, and upon a promise from him that he would reimburse and repay to the plaintiff all the money expended by him in said trip; and that the trip was so taken and the money so expended by the said plaintiff, but that said trip had no connection with the business of said Combs; and that said Combs spoke to the witness of his conduct in being thus willing to pay his nephew's expenses as liberal and generous on his part." On objection, the court refused to permit the evidence to be given, and the plaintiff excepted.

It might very well be, and probably was the case, that the plaintiff would not have taken a trip to Europe at his own expense. But whether this be so or not, the testimony would have tended to show that the plaintiff incurred expense at the instance and request of the deceased, and upon an express promise by him that he would repay the money spent. It was a burden incurred at the request of the other party, and was certainly a sufficient consideration for a promise to pay. Great injury might be done by inducing persons to make expenditures beyond their means, on express promise of repayment, if the law were otherwise. It is an entirely different case from a promise to make another a present, or render him a gratuitous service. It is nothing to the purpose that the plaintiff was benefited by the expenditure of his own money. He was induced by this promise to spend it in this way, instead of some other mode. If it is not fulfilled, the expenditure will have been procured by a false pretense.

As the plaintiff on the theory of this evidence, had fulfilled his part of the contract, and nothing remained to be done but the payment

of the money by the defendant, there could be a recovery in indebitatus assumpsit; and it was not necessary to declare on the special contract. The fifth count in the declaration is for "money paid by the plaintiff for the defendant's testator in his lifetime, at his request." In the bill of particulars we find this item; "To cash contributed by me, J. Semmes Devecmon, out of my own money, to defray my expenses to Europe and return, the said John S. Combs, now deceased, having promised me in 1878 'that if I would contribute part of my own money towards the trip, he would give me a part of his, and would make up to me my part,' and the amount below named is my contribution, as follows," etc. It seems to us that this statement is a sufficient description of a cause of action covered by the general terms of the fifth count. The evidence ought to have been admitted.

The defendants offered the following prayer, which the court granted: "The defendants, by their attorneys, pray the court to instruct the jury that there is no sufficient evidence in this case to entitle the plaintiff to recover the interest claimed in the bill of particulars, marked 'Exhibit No. 1, Bill of Particulars.""

The only evidence bearing on this question is the account taken from the books of the deceased which was offered in evidence by the plaintiff. This account showed on its face a final settlement of all matters embraced in it. In the absence of proof showing errors of some kind, the parties must be concluded by it in all respects. We think the prayer was properly granted.

Judgment reversed, and new trial ordered.

MUTUAL MISTAKE AS TO THE QUALITY OR VALUE OF AN ARTICLE WILL NOT IN THE ABSENCE OF FRAUD, AND WHEN IT IS CLEAR THAT THE PARTIES ARE AGREED AS TO THE SUBJECT MATTER, AVOID A CONTRACT

WOOD V. BOYNTON

64 Wis. 265 (1885)

Plaintiff found an uncut stone of questionable value. She took it to the firm of Boynton & Boynton, partners in the jeweler business and asked Samuel Boynton, one of the members of the firm, what it was worth. Both parties supposed it to be worth but little. The defendant bought the stone for $1.00. Later it was discovered that the stone was an uncut diamond worth about $700. Plaintiff brought this action. to recover possession of the stone. There was a verdict for the defendant in the circuit court and the plaintiff appealed.

TAYLOR J.. The evidence clearly shows that the plaintiff sold the stone in question to the defendants in December 1883, for a consideration of $1.00. The title to the stone passed by the sale and delivery to the defendants. How has that title been divested and again vested in the plaintiff? The contention of the learned counsel for the appellant is that the title became vested in the plaintiff by the tender to the Boyntons' of the purchase money with interest and the demand of a return of the stone to the plaintiff unless such tender and demand revested the title in the appellant she cannot maintain her action. The only question in the case is whether there was anything in the sale which entitled the vendor (the appellant) to rescind the sale and so revest the title in her. The only reason we know of rescinding a sale and revesting the title in the vendor so that he may maintain an action at law for the recovery of the possession against the vendee are (1) that the vendee was guilty of some fraud in procuring the sale to be made to him: (2) that there was a mistake made by the vendor in delivering the article which was not the article sold-a mistake in fact as to the identity of the thing sold with the thing delivered upon the sale. In this case upon the plaintiff's own evidence there can be no just ground for alleging that she had been induced to make the sale she did by any fraud or unfair dealings on the part of Mr. Boynton. Both were entirely ignorant of the character of the stone and of its intrinsic value.

Mr. Boynton was not an expert in uncut diamonds, and had made no examination of the stone except to take it in his hand and look at it before he made the offer of $1.00, which was refused at the time and afterwards accepted without any comment or further examination by Mr. Boynton. The appellant had the stone in her possession for a long time and it appears from her own statement that she had made some inquiry as to its nature and qualities. If she chose to sell it without further investigation as to its intrinsic value to a person who was guilty of no fraud or unfairness which induced her to sell it for a small sum, she cannot repudiate the sale because it is afterwards ascertained that she made a bad bargain. Kennedy v. Panama etc. Mail Co. L. R., 2 Q. B. 580.

There is no pretence of any mistake as to the identity of the thing sold. It was produced by the plaintiff and exhibited to the vendee. before the sale was made and the thing sold was delivered to the vendee when the purchase price was paid.

Judgment of the circuit court is affirmed.