
    May vs. Lansdown.
    June 11.
    Error to the Bourbon Circuit; Richard Ekencii, Judge.
    
      Orders. Bills of exchange. Consideration. Assumpsit.
    
    Assmirsri'.
    Case 40.
    Order paya ble in groce y®] j,Sfg0t 0 change. "
   Judge Underwood

delivered the opinion of the Court.

This was an action of assumpsit, instituted by Lansdown vs. May. The declaration contains three counts. Two of them allege, in substance,. that John T. Mason was indebted to Lansdown, $>100, that May was indebted to Mason $100, that Mason drew an order on May, in favor of Lans-down for the $100, payable in groceries, which order, Lansdown presented to May, who accepted it, in consideration whereof, the defendant May, undertook and assumed upon himself to pay Lansdown the plaintiff, the amount of said order in groceries, whenever thereunto, afterwards requested. The other count avers, that the defendant being indebted to Mason $100, accepted an order drawn by Mason in favor of the plaintiff, for $100, to be paid in groceries, and in consideration of his acceptance thereof, he, the defendant, assumed, &c. to the plaintiff. A trial was had, and verdict and judgment obtained by the pjaintiff. The defendant moved to arrest the judgment, and fora new trial; both motions were overruled, and he has brought the case to this court.

. The judgment should have been arrested, because the declaration was insufficient. The order was not a bill of exchange, because made payable in groceries; Coyles executrix vs. Satterwhite’s administrator, IV Mon. 124. It was not influenced by any of the principles of the lex mercatoria. A parol acceptance would novt bind May, for there is no consideration shown to support such an undertaking, for it does not appear that Lansdown released Mason in consequence of May’s assumpsit; or that the parties agreed, in consequence of the order and acceptance, that the debt From Mason to Lansdown, and the debt frog* May to Mason, were thereby settled and discharged. A written acceptance, coupled with a written order, might amount to a covenant, (and we think would,; since, the passage of the statute placing unsealed in* struments on the footing of sealed,) upon which an action of covenant might be maintained. An acceptance in writing ofa written order, is as much a covenant, to comply with the request in the order, as a stipulation.in a contract relative to land, that 44 we have purchased five hundred acres at four dollars per acre,” is, to pay for it at that price; Kendal vs. Talbot, II Bibb, 614; see also Beal’s Adm’r. vs. Schoal's Ex’or. I Mar. 475.

Betilion for a re-hearing.

It has been urged'in argument, that assumpsit upon an accepted order for property, should be regarded as analogous, in every respect, to assumpsits to recover the consideration for an assigned note, which cannot be collected by due diligence. Not-so. The distinction is obvious. The contract in the first case alone creates the liability, in the other the liability' is matter of law, operating to restore the consideration paid for that which turns out to he worthless. See Luckey vs. Rowzee, I Mar. 226; Wilcoxen, &c. vs. Rix, Ibid, 422.

Wherefore the judgment is reversed, and the cause remanded to the circuit court, with directions to arrest the judgment. The plaintiff must recover his costs in this court.

The .counsel for Lansdown presented the following petition for a re-hearing:

Lansdown, by his counsel, respectfully solicits of the court a reconsideration of the record in this cause, and of the opinion delivered; under the conviction., that one count in the declaration, and probably two, may, upon a strict examination of their language, be found not liable to the objections stated in the opinion.

The court have said, that Lansdown’s judgment should have been arrested, because the declaration was insufficient, that “a parol acceptance would not bind May, for there is no consideration to support such an undertaking, for it does not appear that Lansdown released Mason in consequence of the order and acceptance, or that the debt from Mason to Lansdown, and the debt from May to Mason, were thereby settled and discharged.” And if the acceptance were in writing, the court decide that it is a covenant on which an action of covenant should be brought.

Petition fora, re-hearing,

The third count of the" declaration, e-xprcssly ¡i¡-leges, that the accepted order was d elivered by Ma yon, and accepted by Lansdown, in discharge of the $>100 due from Mason to Lansdown; the very fact which, in the sentence a hove quested, is said not to appear; and the appearance, of which fact, it is to be inferred from the same sentence, would have shown a sufficient consideration to support the undertaking of May, &c.

The third count substantially states, that Mason being indebted to .Lansdown in the sum of $¡100, drew an order in his favor for that amount in groceries, which order, being accepted by May, Mason delivered-the accepted order to Lansdown, who accepted it in-discharge of the debt of $100 due him from Mason; that Lansdown afterwards presented the order to May, who “ accepted and received it,” and, in consideration of accepting and receiving it, undertook to pay the amount iu groceries to Lansdown. It also states, that May still retains the order.

What is the consideration laid in this count, for (he .assumpsit -of May? It is the delivering by Lansdown to May, and the receiving by May of'the accepted order; which accepted order had been previously received, by Lansdown from the drawer, in discharge of a debt oí the same amount. What does May give for this order, with his acceptance on it? He gives his parol assumpsit to pay the amount. Did lie not receive a quid- pro quo? The order of Mason upon hirn, with his acceptance upon it, was in the hands of Lans-down. Was he not liable upon that acceptance? Was not the cancelment or extinction of that order a valuable consideration? Was it not a benefit to May? But a benefit to the promisee, is not the only consideration that is sufficient to support the promise for any damage, or any suspension or forbearance of his right, or any possibility of loss, occasioned to plaintiff by defendants’s promise, is a sufficient consideration to support such a promise; 1 Sanders, 213. Was not the delivery of the order to May, who had previously accepted it, a sufficient consideration to support his as-sumpsit to pay the amount? it is apprehended, that the court has neither decided, nor intended to decide this question; and it is confidently believed, that upon a scrutiny of the third count, it will be seen that upon that count this question is presented.

Petition for re-hearing. a

The third count is not founded upon the “acceptance of May,” &c.; it is not against him merely as acceptor of the order; it is not for a breach of the contract of acceptance; for, according to the statement o.f that count, the order and acceptance were delivered up to May, and his contract of acceptance extinguished. arid his parol assumpsit taken inlieuof it; and the third countisforthe breach of this parol assumpsit. Admitting then that the acceptance of May was a covenant, Lansdown bavrng-grven up to him that covenant, and received his parol assumpsit, could not have resorted again to the covenant, but was compelled to sue in assumpsit for the breach of the parol promise. It would have been so, if he had thus given up May’s promissory note, upon a parol promise to pay the amount. So long as obligee holds the note, it may not be merged or exiinguished by an unexecuted parol promise; but if he delivers it to obligee, who, in consideration thereof, assumes, &c. the note is virtually can-celled, and he can rely upon the assumpsit only.

The words “ accepted and received,’’describe what was the consideration of May’s assumpsit, and ma'y have been mistaken for an informal description of the act of “ acceptance;” but the acceptance of the order by May is previously described; and the allegation, that he still retained it, show that these words, “ received and accepted,” were intended to designate an actual reception, and not the mere acceptance of the brder, as the consideration of the assumpsit. It is believed, that the first count is also of the same nature, as to this point with the third, though the introductory part is somewhat different, stating the indebtedness of Mason to Lansdown, and of May to Mason, without stating expressly that either debt was discharged by the order, or its acceptance; but, as is conceded, strongly implying that both debts were so ■'discharged by the promise of May sued on. In this, as in the third count, it appears that the order was accepted by May before it was delivered to Lans-down: in both it is to be inferred, that the acceptance of May was the inducement to Lansdown to receive it: in both counts it appears that, after the accepted or-ésr was delivered io Lansdown, he presented it to May, who “accepted and received it,” and,In oration thereof, assumed,” <fcc. Is there no ation here, according to the authority above referred to-? .

Petition for re-hearing.

The second count is the only one that is really based upon the acceptance: it makes the indebtedness of May to Mason, the consideration of May’s acceptance, and the acceptance the ground of the promise. A comparison of the language of this count, with that of the others, will show that the construction above contended for, is the real construction of the first and third Counts; and if that is the real construction of both, or either, the counsel for Lansdown entertains the sanguine belief, that the court will not retain the opinion that the judgment ofLansdown should be reversed, as he supposes (hat a different construction of those counts, (into which he may himself have fallen,) was taken by the court, if the construction now contended for be correct, the fact that the acceptance was in writing, and therefore amounted toa covenant, would not affect the form of action upon the facts stated in the first and third counts; but the second count would fee affected by that fact.

The fact is in this case, and the record shows it, that the acceptance of May was in writing endorsed on the order, and signed with his name; and such, it is contended, is the natural inference also from the allegation, (in the first and third counts,) that it was accepted, before its delivery to Lansdown; the second count simply alleges that it was accepted; but it is not deemed necessary to attempt, in defence of the second count, to re-examine the question, as to whether a written acceptance is a covenant.

The counsel for Lansdown asks the court to re-examine the declaration, which is admitted to be informally drawn, for the purpose of determining, whether the fair and proper construction of the first and third counts is not as contended for above; and whether, upon that construction, they are not (or at least one of them,) substantially good, both as to the form of action and the sufficiency of consideration; and that, a re-hearing be granted, or such a modification of the opinion of the court be madey-a^on consideration of the matters herein contained, may seem proper. AH which is respectfully submitted, &,c.

Order paya-r/es^s *aoo(Tp-ted by drawee by a written thereon^nd afterwardson drawee’s pa-tile taking in of the order, consideration of drawee’s parol promise sufficient to' uphold it, anti assumpsit will ie on i. rol promise, discharge it, • payee eurren-ders to him the order; if by drawee, appears to have been a» settlement of the debt due by him to drawer, and also of that

27¡,e court granted a re hearing of the cause. And afte a re-argument, Judge Underwood delivered the opinio of the court as follows:

Upon reconsideration, we are of opinion that the. third count in the declaration will support the verdict a!i<^ judgment. The averments are not very clear and direct; but taking the whole of them together, it shows that Lansdown received an order, drawn by Mason 011 May, for $ 100 payable in groceries, in discharge of a debt for that amount, due him by Mason; that the order was accepted by May; that it was delivered by Lansdown to Mav, who retained it,and promised by parol to discharge the amount thereof.

The surrender of the order with the acceptance endorsed, and its retention by May, together with the presumption resulting from the whole transaction, that. Lansdown discharged Mason, all which we now look upon as sufficiently established, by the declarations as well as the proof, constitute a sufficient consideration (o uphold the assumpsit by May to Lans-down, Upon our first view of ¡he case, we were disposed to think that the declaration placed the consi-do'Mion for the assumpsit declared on, entirely in the acceptance of the order. As the order was not a mercantile instrument, or bill of exchange, we were inc|ined to think, that a written acceptance of it would amount to a,covenant .to-pay according to the request, and consequently, in this view of the case, an actior 0f assumpsit could not be maintained. Regarding fjjC acceptance as made by parol, then it was mere!) an undertaking to pay the debt of auother without any consideration; for it did not appear from any u-verment, that Mason had discharged May from the debt due by May to Mason, on account of the acceptance of the order. In either view the declaration was deemed insufficient. But now looking upon the surrender of the order by Lansdown, after its acceptance, and the taking it in by' May, as a settlement of the debt due by May to Mason, and likewise, that due by Mason to Lansdown, we perceive an ample consideration to sustain the parol promise made by May to Lansdown, to discharge the order.

Feemster, for plaintiff; T. A .Marshall, for defendant.

Wherefore, we now think the court correctly overruled the motion in arrest of the judgment. We think the evidence warranted the verdict. Consequently, the judgment must be affirmed with costs and damages. •  