
    Samuel H. Barlow vs. Gardner G. Smith, Charles B. Janes, Horace Janes and Ashbel Smith.
    Franklin,
    
      January, 1832.
    The parties in a controversy having agreed in writing to submit it to the determination of arbitrators, two other persons, not interested, promised in writing, ¿to, in consideration of said submission, they -would -pay whatever sum should be awarded against one of said parties, it was held that the promise was without consideration, and not binding on the promisors.
    . This was an action of assumpsit. The declaration contained three counts. The first count was as follows :
    “For that the said defendants, heretofore, to wit, on the first day of May, A. D. 1829, at St. Albans aforesaid, in consideration that the plaintifi would submit certain matters of difference then existing between the said plaintiff and the said Charles B. and Gardner G. concerning the said plaintifi’s leasing his, the said plaintiff’s store to the said Charles B. and Gardner G., and concerning the contracting to purchase the goods of him the said plaintiff by the said Charles B. and Gardner G., to the arbitrament, decision, and final determination of Luther B. Hunt and George Green, they the said defendants assumed upon themselves, and then and there jointly and severally promised the plaintiff to pay him all such sum or sums of money as should be awarded by said Hunt and Green to be paid to the plaintifi by the said Charles B. and Gardner G. in 90 days from the said 1st day of May, A. D. 1829. And the plaintiff further says that lie, relying on, and trusting to, the aforesaid promise and undertaking of the said defendants so made by them as aforesaid, did after-wards, to wit, on the same day and year last aforesaid, at St. Al-bans aforesaid, submit said matters of difference then existing between the plaintiff and the said Charles B. Janes and Gardner G. Smith concerning the plaintifi’s leasing his store to the said Charles B. and Gardner G., and concerning the contracting to purchase the goods of the said Barloiv by the said Charles B. and Gardner G., to the decision, arbitrament, and final determination of said Luther B. Hunt and George Green : and the said Hunt and Green afterwards, to wit, on the day and year last aforesaid, at St. Albans aforesaid, assumed upon themselves the said duties of arbitrators in the matters aforesaid, between the said plaintifi and the said Charles B. and Gardner G. And the said plaintiff and said Charles B. and Gardner G. then and there, on the day and year last aforesaid, at St. Albans aforesaid, ap • peared before said Hunt and Green as such arbitrators in said matters of difference aforesaid, and then and there submitted said matters of difference aforesaid, to the final determination, award and arbitrament, of said Hunt and Green. And the said Hunt and Green then and there, so being arbitrators as aforesaid, having taken into consideration the said matters of difference so existing between the plaintifi and said Charles B. and Gardner G., and so submitted to them, the said Hunt and Green, as aforesaid, did then and there award,determine and adjudge, that the said Charles 
      
      B. and Gardner G. should pay the plaintifl the sum of one hundred and fifty dollars in ninety days from said first day of Mayy A. D. 1829, in full satisfaction and discharge of said matters of difference aforesaid ; of all which the said defendants then and there, to wit, on the day and year last aforesaid, at St. Albans, had due notice. Yetthe said defendants, not regarding their said promise and undertaking so made by them as aforesaid, have not as yet paid to the plaintiff said sum of one hundred and fifty dollars or any part thereof, though often requested so to do,to wit,at St.Al-bans aforesaid, to wit, on the 20th day of August, A. D. 1829.”
    The other two counts, being for the same object, need not be noticed, except the considerations for the promises. In the second count the consideration was set forth as follows :
    “ And also for that whereas the defendants heretofore,to wit,on the 1st day of May, A. D. 1829, at St. Albans aforesaid, in consideration that the plaintiff and the said Charles B. and Gardner G. would submit certain of the matters of difference then existing between the said plaintiff and the said Charles B. and Gardner G. concerning the leasing of the said plaintiff’s store to the said Charles B. and Gardner G., and the contracting to purchase the goods of the said plaintifl by the said Charles B. and Gardner G., to the final decision, award, arbitrament and determination, of Luther B. Hunt and George Green, they the said defendants assumed upon themselves,and then and there jointly and severally promised the plaintiff to pay him,” &c.
    
      In the third count: — “ And also for that whereas the said defendants heretofore, to wit, on the 1st day of May, 1829, to wit, at St. Albans aforesaid, in consideration that the plaintifl and the said Gardner G. and Charles B. would submit certain other matters of difference then existing between the said plaintiff and the said Charles B. and Gardner G. concerning the leasing of the said plaintiff's store by the said Charles B. and Gardner G., and the contracting to purchase the goods of the said plaintiff by the said Charles B. and Gardner G., and in consideration that the said plaintiff’ and the said Charles B. and Gardner G. then and there mutually agreed to relinquish the contract in full relating to said store and said goods, and submit the same to the determination of Luther B. Hutu and George Green to say what (if any thing) the said Charles B. and Gardner G. should pay the said plaintiff, and he the said plaintiff to keep the goods and relinquish the lease of said store ; and also tbafthe said plaintiff and the said Charles B. and Gardner G. then and there mutually agreed to abide the award of the said Hunt and Green, and that the same should be a full and final settlement of said difficulty, they the said defendants assumed upon themselves,and then and there faithfully promised the plaintiff to pay him,” &c.
    The general issue of non assumpsit was pleaded ; and the following bill of exceptions gives a history of proceedings in the action ;
    
      “ This was an action of assumpsit on an agreement to perform the award of arbitrators. Plea, non assumpsit, and issue to the jury. On the trial of the cause before the jury on the issue aforesaid, the plaintiff offered in evidence an agreement in writing entered into by the plaintiff and Charles B. Janes and Gardner G. Smith, two of the defendants, dated May 1st, 1829, by which they agreed to submifto the determination of Luther B. Hunt and George Green, as arbitrators, certain matters of difference therein named ; also a written agreement on the back of said submission, signed by Charles B. Janes, Gardner G. Smith, Horace Janes, and Ashbel Smith, as follows : “ In consideration of the within “ submission, we hereby jointly and severally agree to pay what- “ ever sum may be awarded (if any) to said Barlow within nine“-ty days from this 1st of May, 1S29.” And also upon the same paper an award of said arbitrators, awarding to said Barlow one -hundred and fifty dollars ; all of which are referred to and made a -part of the case. To the admission of this evidence the defendants objected, ^ind contended that the said writing ought not to be admitted in evidence : First, because the contract declared on and the contract offered in evidence materially varied. Secondly, because there is no consideration for the contract signed by the defendants. • But the court overruled the objections, and admitted the evidence. The defendants then contended, and so requested the court to charge the jury, that there was no consideration for the contract signed by the defendants. But the court charged the jury that there was a sufficient consideration for the contract made by the defendants; and the jury thereupon found a verdict for the plaintiff.”
    The submission and endorsements thereon,referred to,and made a part of the case, are as follow :
    Whereas a misunderstanding has arisen between Samuel H, “ Barlow, and Charles B. Janes and Gardner G. Smith con- “ cerning the leasing the said Barlow’s store by the said Janes “ and Smith, and the contracting to purchase the goods of the said “ Barlow by the said Janes and Smith, and it is agreed between “ the parties to relinquish the contract in full, and submit to the “ determination of George Green and Luther B. Hunt to say “ what (if any thing) the said Janes and Smith shall pay the said “ Barlow, and he, the said Barlow to keep the goods and relin- “ quish the lease of said store. We hereby mutually agree to “ abide the award of the said George and Luther, and that the “ same shall be a full and final settlement of said difficulty.”
    
      “Samuel H. Barlow,
    
    
      “ Charles B. Janes.
    
    
      “G. G. Smith.”
    
    
      St. Albans, May 1, 1829.”
    “ In consideration of the within submission we hereby jointly “ and severally agree to pay whatever sum may be awarded (if 
      a a any) to the said Barlow, within ninety days form this 1st day of May ÍS29.
    Cr. G. Smith,
    
    
      Charles B. Janes,
    
    
      Horace Janes,
    
    
      Ashbel SmithJ
    
    
      ec a u u “ Having taken into consideration the subject matter of the within submission, we do award, that the said Charles B. Janes and Gardner G. Smith pay to the said Samuel H. Barlow one hundred and fiftv dollars in ninety days from this first day of May, 1829.
    
      George Green, Luther B. Hunt, } Arbitrators.
    
      Smalley and Adams, for plaintiff-,
    
    contended, — I. That there was no variance between the written evidence admitted to the jury, and the several counts in the plaintiff’s declaration. — 2. That the written contract of the defendants upon the back of the submission was not void for want of consideration, but was legal security for the performance of the award in 90 days from date, on the part of the two first signers.
    
      Brown and Swift, for defendants,
    
    contended, That there was a material and fatal variance between the contract set forth in the plaintiff’s declaration, and the one offered by him in support of said declaration, both as to the time of the making of said pretended contract, and the consideration on which it was founded. 1. As to the time of making said contract. The declaration alleges the contract to have been made prior to the submission. The contract offered in evidence appears to have been made subsequently to the submission. 2. The contract set forth in the declaration is founded on the consideration that the plaintiff would submit. The contract offered in evidence is founded on the con-consideration that the plaintiff and Charles B. Janes and G. G. Smith had submitted. For this variance the evidence ought to have been rejected by the court. 1. Chit. Plead. 304 ; Colt vs. Root, 17 Mass. Rep. 229; Church vs. Wilkins,! T. R. 447 ; Penny vs. Porter, 2 Hast, 2 ; Hockins vs. Cooke, 4 T. R. 314; Buckley vs. London, % Con. Rep. 404; Roberts vs. Linch, 18 John. Rep. 451 ; Amory vs. Merryweather, 2 B. and C. 573, (d Com. Law Rep. 183.J
    2. The contract offered in evidence is void for want of consideration. The contract professes to have been made by persons, who had no interest in the controversy, and in aid of a sub-sjsting liability on the part of Charles B. Janes and Gardner G. Smith, and is made without any consideration moving to the said Horace Janes and Ashbel Smith, arid without forbearance or prejudice on the part of the plaintiff. The pretended consideration is no more the act of Barlow, the plaintiff, than of C. B. Janes and G. G. Smith, — Hayes-vs. Warren, 2 Strange, 933; Com-stock vs. Smith, 7 John. Rep. 87 ; 1 Chit. Plead. 397 ; 1 Bac. Abr. 174; 1 Swift's Dig. 203.
    '3. A consideration is ns essential to n written contract coming within the provisions of the statute of frauds, as to any other.
    - 4. But suppose the legal effect of the contract set forth in the declaration, and the one offered in evidence, to be the same, still it is contended that the contract is void for want of consideration : 1. Because the submission in this case was mutual, and equally beneficial to both parties, and cannot, therefore, amount to a sufficient consideration to support a contract made by a stranger to the controversy in favor of either party. 2, Because the arbitrators in making their award could be governed only by the submission, and the rights of the plaintiff growing out of the award are precisely the same as if no contract had been made. 3. Because no benefit results by the submission to two of the defendants, II. Janes and A. Smith; nor does the plaintiff by said submission forego any right or advantage which he might otherwise have. 4. Because the submission is not binding on the parlies ; either having the right to revoke at any moment before the publication of the award. 5. Because the contract is not mutual and equally beneficial; the plaintiff having the right of rescinding the contract at any time, while two of the defendants, II. Janes and A. Smith, have no such right. 6. Because such contract is wholly useless and unnecessary to the validity of the award, and if binding, would give the plaintiff a double remedy for the same cause.
   Baylies, J.,

delivered the opinion of the Court.- — It appears that on the 1st of May, 1829, Samuel H. Barlow, the plaintiff, and Charles B. Janes and Gardner G. Smith, two of the defendants, made a written submission of certain matters of difference between them to the determination of George Green and Luther B. Hunt, arbitrators ; and in their submission mutually agreed to abide the award of the said George and Luther B., and that the same should be a full and final settlement. This submission was not made a rule of court, but was simply the act of the parties. It was not under seal, and the parties relied on their mutual promises to carry it into effect. Also this submission was revocable at the pleasure of either party at any time, before the award was made ; and the party revoking, in an action on his promise, would be liable to nominal damages only, unless the other party had put himself to trouble and expense in making preparations for a hearing before- the arbitrators. While these were the rights and liabilities of the parties to the submission, the defendants signed the agreement, to wit; “In consideration of the within “ submission, we hereby jointly, and severally, agree to pay what- “ ever sum may be awarded (if any) to the said Barlow within “ ninety days from this 1st day of May, 1828.”

On trial of the action, in the court below, the plaintiff offered this agreement in evidence to the jury; to the admission of which the defendants objected : first, for variance ; and secondly, for want of consideration: but the court overruled the objections, and admitted the agreement. Whether the county court erred in this is now to be determined.

Every agreement not under seal is, in law, regarded" a parol agreement,and will not be binding unless made upon adequate consideration.^ That consideration must generally be, either a matter of advantage to the promisor, or detriment to the promisee, or both, brought about in consequence of a previous request, express orim-plied, of the promisor^JFeii on Guarantees, 3,4.) (Butin addition to this, if a man be under amoral obligation, which no court of law, or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration : as if a man promise to pay a just debt, the recovery of which is barred by the statute of limitation ; or if aman, after he comes of age, promises to pay a meritorious debt contracted during his minority, but not for necessaries ; or if a bankrupt in affluent circumstances, after his certificate, promise to pay the whole of his debts; or if a man promise to perform a secret trust, or a trust void for want of writing by the statute of frauds. In these, and many other instances, though the promise gives a compulsory remedy, where there was none before, either in law or equity ; yet if the promise is only to do what an honest man ought to do, the ties of conscience upon an upright mind are a sufficient consideration. — (1 Tidd, 370; Cowper, 290.) So a promise for promise, made at the same time; or forbearance to sue a legal demand, is a sufficient consideration. — (1 Saund. 210 ; Hardres, 103.) But a promise made on a past consideration is not binding on the defendant. — (2 Strange, 933.) If an agreement be all on one side, and the plaintiff be not bound by it, his a nudum pactum, and the defendant is not bound. — (3 T. R. 653.J So where the plaintiff declared, that in consideration he, at the instance of himself, had taken pains to reconcile the difference between J. S. and others, the defendant promised, &c., it was adjudged to be a voluntary courtesy, and not a sufficient consideration for the defendant’s promise. — Style’s Rep. 465.) If we apply the principles of law to the agreement of the defendants, the inadequacy of its consideration must be obvious. This agreement was not made in consideration, that at the special instance and request of the defendants, the plaintiff had or would submit to arbitrators; nor in consideration, that the plaintiff would not revoke the submission; nor in consideration oí forbearance on the part of the plaintiff to sue $ nor in consideration of any moral obligation on the part of the defendants, which a court of law or equity could not enforce ; nor in consideration of any promise of the plaintiff to the defendants, made at the same time : but it was made in consideration of the submission ; that is, in consideration of ivhat had been written and signed by the plaintiff and two of the defendants, on the other side of the paper. But this must be viewed as a past consideration, and not sufficient to support the agreement of the defendants. As two of the defendants were not parties to the submission, they could receive no benefit irom it': nor was the plaintiff prejudiced by their making it the consideration of their agreement: for his rights and interest in the submission remained precisely as they were before. And their agreement can only be sustained on a consideration of benefit to the defendants, or detriment to the plaintiff; but in this case no such consideration appears.

It also seems, there is a material variance between the contract set forth in the plaintiff’s declaration, and the one offered in evidence ; but it is not necessary to decide this, inasmuch as the defendants’ agreement had no sufficient consideration to support it.

The judgement of the county court is reversed, and a new trial granted^  