#### Ithamar Kellogg *versus*Abijah Curtis, Administrator &c. of Reuben Stoddard.

The plaintiff having attached land, on the ground that a previous conveyance ot It made by his debtor to the defendant was void as against creditors, the plaintiff and defendant entered into a written agreement to submit the difference between the plaintiff and his debtor to three arbitrators and to abide their judgment, and similar promissory notes were made by the plaintiff and defendant to each other, and were deposited in the hands of one of the arbitrators, to be delivered up against the party who should fail to perform his agreement; and upon this the.plaintiff, at the request of the defendant, relinquished his attachment and discontinued his suit against his debtor, who had absconded. The defendant having failed to perform his agreement, the notes were delivered to the plaintiff. It was *held,*that the relinquishment of the plaintiff’s attachment was a sufficient consideration for the defendant’s note, and that the plaintiff might maintain an action upon it.

Held, also, that the note was in the nature of a penalty, and that the defendant was eutitled to show, as the measure of damages, the sum actually due to the plaintiff from his debtor.

Assumpsit upon a promissory note, for $ 150, dated February 23d, 1828, made by Reuben Stoddard, the intestate.

Trial before *Putnam*J., upon the general issue.

The plaintiff, on December 8th, 1827, sued out a writ against one Knapp, in which the *ad damnum*was laid at $200, and attached certain real estate which Knapp had previously conveyed to Stoddard. This conveyance the plaintiff considered to be fraudulent and void as against creditors. T. Lee testified, that when Stoddard made the note to the plaintiff, the plaintiff also made a note to Stoddard, and that both notes wei *b*written upon a sheet of paper containing an agreement of even date with the notes, and signed by the plaintiff and Stoddard, as *544follows : — “ This may certify, that R. Stoddard and I. Kell°gg have agreed to leave out all the difference between A. E. Knapp and I. Kellogg to three men, namely R. Brown, A. Haskins, and T. Lee, and to abide their judgment. We agree to have it decided on next Tuesday at 2 o’clock in the afternoon.” Upon entering into this agreement, the plaintiff, at the request of Stoddard, relinquished his attachment, and discontinued his suit against Knapp, who had absconded, and the notes were deposited with Lee, to be delivered up against the party who should fail to perform the agreement. Stoddard did not perform it, and the note in suit was accordingly deliv- ' ered to the plaintiff.

The defendant contended, that as the agreement to ascertain by arbitration the amount due from Knapp to the plaintiff was binding on the parties, the plaintiff should have declared on that agreement, averring performance on his own part and a refusal to perform on the part of the defendant, and also setting forth the amount due from Knapp to the plaintiff. The judge overruled the objection, considering the action to have been properly brought on the note.

The defendant also contended, that the plaintiff must prove that his claim against Knapp was a just demand. But the judge ruled, that as the plaintiff gave up his attachment and discontinued his suit at the request of Stoddard, upon entering into the agreement, there was a sufficient consideration for the note.

The defendant then offered to show, that at the time when Knapp was sued, nothing was due to the plaintiff. But the judge refused to let the defendant go into the merits of the case of the plaintiff against Knapp.

*Dwight*and Barnard, for the defendant,

insisted that the action ought to have been brought upon the agreement to abide by the decision of the arbitrators, and not upon the note. Either party had a right to ask the arbitrators to proceed *ex*parte, and no notice was necessary, the time for the hearing being fixed by the'submission. *Wood*v. Leake, 12 Ves. 412 ; *Allen*v. Watson, 16 Johns. R. 205, 209 ; *Freeman v.*Adams, 9 Johns. R. 115; 2 Wms’s Saund, 62 6, note 5. The plaintiff introduces parol evidence to vary this written agreement.

The note was not founded upon any consideration, as the *545debt of Knapp to Kellogg was not extinguished. *Thompson*v. *Charnock,*8 T. R. 139 ; *Street*v. *Rigby,*6 Ves. 821.

The note was given by way of a penalty, and the plaintiff ought to have proved the amount due to him from Knapp ; but on the contrary, the defendant was even prevented from showing that Knapp was not indebted to the plaintiff.

*Hall,*on the other side,

to show that the plaintiff’s relinquishment of his attachment was a sufficient consideration for the note, cited *Lent*v. *Padelford,*10 Mass. R. 230. He argued that the note was given as liquidated damages.

Putnam J.

delivered the opinion of the Court. The first question to be considered is, whether there was a good consideration for the note. It would be sufficient if there were gain to the promisor or damage to the promisee.1 But in the case at bar both concur. ' By the arrangement, the promisor procured a discontinuance of an attachment upon the estate which he claimed, whereby his title was confirmed, and the promisee thereby gave up his security. We think, therefore, there was a sufficient consideration.

The note was given upon a condition which the defendant failed to perform. The jury so found the fact, upon the evidence which was submitted to them upon the trial. There is no objection to the plaintiff’s recovery on that ground. It was to be delivered to the party who performed ; and the party <vho failed to perform the condition became answerable for the non-performance.

The question remaining to be considered regards the amount which the plaintiff is entitled to recover. If, as his counsel contends, the amount of the note was the damages liquidated by the parties, then the whole sum, with interest, should be the measure of damages. If the notes, which were given by each to the other, were in the nature of a penalty for the non-performance of the agreement of submission, then the rule of damages should be the real injury sustained by the plaintiff. And upon consideration, we all think the latter is the correct view of the transaction. The defendant assumed the liability of Knapp to the plaintiff. The amount of the claim was to be *546ascertained by the arbitrators mutually agreed upon by the parties. But the defendant prevented the decision or arbitration. He should therefore be held to put the plaintiff in as good a situation as if his claim against Knapp had been ascertained by the arbitrators. The measure of damages would have been the amount of the award of the arbitrators. The loss of the debt due from Knapp to the plaintiff is the injury which he has sustained by giving up his attachment.

We all think that the judge should have permitted the defendant to prove, either that nothing was due from Knapp to the plaintiff, in which case nothing should be recovered ; or that a sum, less than that expressed in the note, was due, in which case that sum should be recovered.2

A new trial must therefore be granted.

1

 See 1 Metcalf & Perkins’s Dig 99 *tit £greement. art.*II. (1).

2

 See *Harrington*v. Stratton, 22 Pick. 530; *Dyer*v. *Homerf*22 Pick. 253.