#### *N. Pope vs. A. H. Fort.*

Defendant undertook, in writing, to pay the amount of a note, of one Groner, to the plaintiff, when he should be in possession of funds, belonging to Groner. Held, that an action could not be supported against the defendant, upon his undertaking; it being void, for want of a consideration, to support the promise.

*Before*Richardson,' J. Richland, *Fall*Term, 1841.

The following summary of the facts, of this case, will be found (with the grounds of appeal,) sufficiently intelligible, to a proper understanding of it.

The defendant, Fort, assumed in writing, to pay the plaintiff, Pope, the amount of a note drawn by one Groner, when, in funds for the maker, (see the note.)

The question was, whether Fort had received such funds. Davis proved, that Fort was a Commissioner of public buildings; the Commissioners were indebted to Groner, for work done; and Fort, thereupon', made the written assumption.

Groner, (being first released by Pope,) then swore, .that Fort was Chairman of the board; and after the assumption to Pope, he (Fort,) paid the witness $100 for his work, by a check, upon Major Hart, which was received, but his note never was taken up, as he wanted the money to get married.

Major Hart, also, proved, that the check had been paid, &c.

Isaac Tickner said he had called on Fort for payment; who said he would pay it, as soon as he got the money for Groner.

West Caughman said Groner called for his money, and the board authorized Fort to draw $100 to pay him.

Captain Harman said Groner applied for the money, i. e. $50, to pay the witness, and $50 to get married.

The Court held Fort liable, upon this evidence, and decreed for plaintiff.

*Copy of the*note, *referred*to, *and, of the defendant's promise.*

“ 65,75. Three days after date, I promise to pay, to N. Pope, or bearer, sixty-five dollars, and seventy- five cts. for value received of hin, the 24th of March, 1840.

[Signed,] N. W. GRONER”

*61"Mr. Pope left in my hands the original, of which the above is a copy, which I am requested by the maker to pay, which I will do, whenever his funds come to my hand.

[Signed,] A. H. FORT.

Aug. 10, 1840.”

The defendant appealed and moved for a non-suit, upon the ground, that the *allegata*and probata, did not correspond, in this, because it was alleged in the process, that the defendant promised, unconditionally, to pay the note made by N. W. Groner, when, in fact, as appeared from the evidence, he only promised to do so, when funds, belonging to Groner, should come to his hands.

And also, to reverse the decree of his Honor, upon the following grounds:

1st. Because there was no evidence, that any funds belonging to Groner, ever came into the hands of defendant:

And 2nd. Because the defendant, in giving the order on the Treasurer, acted in his official capacity, as Chairman of the Commissioners appointed to superintend the building of the Lexington Court House, in obedience to their order, as proven by the witness, Caughman, and had no power or authority individually, to retain the order in his own hands, or to draw the money himself, the said Commissioners having made a special order, that Groner should be paid the amount of the draft.

3. Because the promise of defendant, to pay Groner’s debt, was without consideration, and therefore void.

Boozer, for motion,

said the *allegata and probata*did not correspond, *Hilberson vs.*Paysinger, 1 Bail, Rep. on 2nd ground. .He said there was no consideration to support the promise; there would be none, until funds were received, cited Riley’s, L. Cases, 56. The consideration must be proved. Powell on Cont. 343 to 356 ; 5 J. R. 6, lb. 272, 18, J. R. 145

Mr. -, contra.

Curia, *per*

Earle, J.

This action is brought against the defendant, on his alleged undertaking, to pay a debt, due *62to the plaintiff, *from one*Groner, by a note of hand. The promise relied on is in writing ; and so far complies with the statute of frauds, as we do not now require the consideration to be expressed. But there are several objections to the plaintiff’s recovery; some arising out of the process, others out of the paper itself, as a legal assumpsit, to sustain an action. It is not, itself, a note of hand, importing consideration; and none is set out in the process. If we dispense with that, as I suppose we may, under the liberal (perhaps it would be more true to say, loose,) practice in that jurisdiction, yet, the promise to pay ison a contingency, “whenever his funds come to my hands.” Now surely, the process should have alleged the receipt of funds, and when; with a refusal to pay. But supposing this to be cured too, does the paper itself, and the proof, authorize the decree *%*Regarding it as an undertaking, to pay the debt of another, some consideration is necessary ; some loss, or inconvenience to the plaintiff, or some benefit, however slight, to Groner, or the defendant; and, I confess, I do not perceive either. There is no stipulation for forbearance to Groner, much less, to discharge him, in consideration of the defendant’s promise. The defendant, himself, did not owe Gro-ner, and could derive no advantage from paying his debt. The plaintiff deposited the note with defendant, although, it was payable to bearer; this was no transfer, but only to enable him, whenever Groner’s funds came to hand, to apply them and deliver up the note, to Groner. On considering the terms of the paper, and the whole complexion of the case, I think it apparent, that this could only be done with Groner’s consent; and that, in fact, there was no undertaking, on the part of the defendant, to pay the debt out of his own funds. Groner made no assignment of the fund to the plaintiff, so as to make it money, had and received, in the hands of defendant, to the use of the plaintiff. He requested Fort to pay the note, and Fort said to the plaintiff, I will do so, as he has requested me, when his funds come to my hands. Before that event happened, Groner changed his mind, and countermanded the order to pay the plaintiff, as it was competent for him to do. So far from assigning the fund to the plaintiff, by drawing on Fort, in his favor, there does not appear to have been any com*63munication on the subject, between Groner and the plaintiff. As between him and the defendant, it was competent for him to revoke, at pleasure, any order given for the payment of the money, before it was paid. If the undertaking was not such as I have supposed, and the understanding of the parties, likewise, why was not a check drawn at once, on the treasury, in favor of the plaintiff, to pay Gro-ner’s note'? I think there was no legal undertaking to pay, founded on any consideration, proceeding from the plaintiff, to sustain this action. The defendant might, gratuitously, have undertaken to collect this note, for the plaintiff; if he did so, and the note was intrusted with him, for that purpose, and he entered upon the performance of the trust, he would be bound to act honestly, and would be answerable for the damages, if he were guilty of culpable negligence. The action here, .however, does not rest upon these grounds, which it will be time enough to consider, when they come before us. The motion to set aside the decree, and to enter a non-suit, is granted.

We concur. John Belton O’Neall, Josiah J. Evans, D. L. Wardlaw.

*Butler*dubitante, Richardson, *J.*dissenting.

Richardson, J.

*dissenting.*The only important question, in this case, is, whether there was any legal consideration, to support the written assumption of Fort, to pay the note of Groner; and, thereby, render his assumption binding in law, according to the statute of frauds. Groner had requested Fort to pay the note to Pope; whereupon, Fort took possession of the note, which was payable to bearer ; Fort then made his written assumption, upon a copy of the note. What was the consideration; whether the note was assigned, by the delivery to Fort, or was placed in his hands, as an indemnification only *1*Still, Fort either accepted it as, and for a guaranty, or as assignee by the delivery. In either case, it was a security for his assumption and, therefore, a valuable consideration. If he took the note as his own, he was fully paid for his assumption. If he took it as a bailee, he then held a pledge for *64his indemnity from loss. Fdrt could, not lose, in any event* For lie undertook to pay the note, only in case he received Groner’s money.. But he chose, for greater security, to hold the note, while, at the same time, Groner was precluded, by Fort’s assumption, from all claim to his money. Here were, then, two considerations for Fort’s assumption; the deposit of the note, payable to bearer; and Groner’s preclusion, from his right to the money, by his own authority. Thus Fort stood secured, and counter-secured. And either was enough; if we are to regard the doctrine, so well laid down in *Eggart vs. Barnshire,*in 3 McCord’s, Reports, 163, and so fully reconsidered in the case of *Filer & Givens.*To show how small a consideration is required to support an express moral contract, and to prevent good faith being broken, for want of it, see the cases collected in note “A,” in the appendix to 3d McCord’s Reports. In the case of *Duncan vs.*Gadsden, Harper, 364, the written assumption on Ogden’s note, was this; “the within amount, I promise to pay, when in funds, for Robert Ogden; the period not to exceed 6 months.” But the funds were not proved, and the case failed. But, suppose the funds had been received, then, would not the consideration have been good; or must the consideration be, always, *in'presentid*In such cases, I apprehend, that the consideration is money expected; which, when realized, by the receipt, verifies the consideration; which was before, (like the assumption itself,) executory and conditional only. It is like the acceptance of a bill, if the funds of the drawer should come to hand, which is a binding contract, only, if the funds come. Here, tbe consideration is executory, not *in*presentí, yet good in law. But, without urging the doctrine so far; I ask, if Groner could have recovered the money of Fort, after Fort had assumed to pay it, at Gro-ner’s request, to Pope; and, also, held Groner’s note, payable to bearer, for the very amounts He could not. Then, was not Fort equally bound to pay it to Pope *1*He certainly could not, legally, keep it for himself. Substantially, Fort had the conditional release of Groner for the money, had fulfilled the condition, by his express assumption to Pope. But, he prudently took the note, for perfect safety sake. How these facts can be construed into no considera*65tion for liis assumption, I cannot perceive. It seems to me, that the statute was fulfilled to its letter ; and the rule of the common law, against *“nuda pacta”*to its reason and spirit. In the case just decided, of *Moore vs. Denson,*Ballard placed in the hands of Hemphill, the note of Denson, to counter-secure Colclough, for his assumption, to pay Ballard’s debt to the bank. Now if Colclough, upon this security, to pay Ballard’s debt to the bank, was not bound so to pay, then the assignment of Denson’s note to him was a *nudum pactum*and void, and our decision is erroneous. But, suppose Colclough had afterwards actually received the money of Denson, and had chosen to pay it over to Ballard, instead of the bank, how could that have lessened his liability to the bank *%*This was what Fort did;' he received the money, realized the consideration of his promise to Pope, and chose to pay the money over to Groner, instead of Pope. But, was not both he and Colclough in the common situation of a surety, who undertakes, in writing, to pay the debt of a third party, after being indemnified. Or of a broker, who lends his name for a premium, or upon counter-security being first placed in his own hands. But the proper way to adjudge the case, would be to take it at the moment before Fort paid the money to Groner, and ask, to which of the parties would the Court have assigned it, under the statute of frauds, which so wisely requires an assumption in writ-ting, in all such cases, and under the common law, which, as wisely, requires some consideration, .or good cause for the assumption, to be either expressed or proved *rl*The rest of the case is not very important, but I would save it from any estoppel in law, which would go to fix a principle for other cases.

J. S. RICHARDSON.