
    Helen Deyo, Respondent, v. Charles L. Thompson, as Executor, etc., of Charles E. Thompson, Deceased, Appellant.
    
      Non-negotiable note — no presumption of a consideration exists — a promise to a servant that “ it would be all made up” does not establish a consideration for a note.
    
    Under the provisions of the negotiable Instruments Law (Laws of 1897, chap. 612) a note in the following form, “ On demand I promise to pay Helen Deyo three hundred dollars," does not import a consideration, and the burden is upon a party suing on such a note to prove the existence of a consideration therefor by extrinsic evidence.
    
      A statement by a man when hiring a servant at certain wages that he could not afford to pay more, but that it would be all made up to the servant, does not furnish a consideration which will support a promissory note given by him, almost thirty years after making the statement, to the servant, with whom annual settlements have been subsequently made.
    Kellogg and Edwards, JJ., dissented.
    Appeal by the defendant, Charles L. Thompson, as executor, etc., of Charles E. Thompson, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 17th day of January, 1900, upon the report of a referee.
    The action was brought to recover the amount of a note, of which the following is a copy :
    
      “ $300. St. Remy, Ulster County, N. Y.,
    “ May 7, 1898.
    “ On demand I promise to pay Helen Deyo three hundred dollars.
    “C. E. THOMPSON.”
    
      Ma/ariee W. Eltinge, for the appellant.
    
      Bernard <& Van Wagonen, for the respondent.
   Merwin, J.:

The contest in this case was over the question whether there was a consideration for the note. The referee finds that the note was made and delivered to plaintiff by Charles E. Thompson in consideration of and in payment for services previously rendered by plaintiff for him and at his request, and was in addition to any sums that had been previously paid by him to plaintiff for the same.

Upon the trial the plaintiff presented the note, proved its execution, put it in evidence and then rested. The defendant moved for a dismissal of the complaint upon the ground, among others, that no consideration had been shown. The motion was denied and defendant excepted. Upon the part of the defendant it appeared that Mr. Thompson was a farmer and that the plaintiff had worked for him for many years ; that he died on July 20, 1898, leaving a will in which no mention was made of the plaintiff. Proof was given of several statements made by plaintiff soon after the death of Mr. Thompson. One witness testified that lie said to plaintiff that they, referring to Thompson’s heirs, “ got a nice present,” and asked her what she got, and she said “ he gave her a due bill for $300 and a home, but had a dead mail’s word for that.” Another witness testified that upon the day the will of Mr. Thompson was read she said to the plaintiff, “ is it possible uncle Charles has not remembered you in his will?” and she replied that he had given or left her $300 ; that the witness then asked her “ why wasn’t your name mentioned in the will ? ” and she replied, “ he didn’t care to have the rest to know it, there might be a fuss, or something like this.” Another witness testified that just after the funeral the plaintiff told her that Mr. Thompson left her $300.

The defendant then called as a witness the plaintiff. She testified that a book shown her was Mr. Thompson’s account book; that it contained her account with Mr. Thompson and that they settled each year by that book; that when she had such settlements she signed her name to receipts in full at various times; that on July 11, 1898, she received from Mr. Thompson twenty-five dollars which is charged to her by him in his book at that date. The accounts in the book between the plaintiff and decedent were then offered in evidence by the defendant and received. In the first ■entry in these accounts it was stated that the plaintiff on April 1, 1878, went to work for the decedent for three dollars a month and house rent. Under date of April 1, 1879, it was stated that she began her work at five dollars a month. From this date to January 1, 1898, there are entries of payment from time to time amounting to sixty dollars a year, except that in 1895 the payments were ninety dollars. There were several receipts for payment in full to date, the last one being January 1, 1898. An account of the plaintiff ■for services from June l, 1898, was paid by the defendant after the death of Mr. Thompson.

Upon her cross-examination by her counsel she testified that she went to Mr. Thompson’s May 3, 1869, and ivas there till his death, and she described the character of her services; that three years before his death he was confined to his bed by illness for three months, and that she and Mr. Hall took care of him; that when she wrent there in 1869 she wentunder a contract with Mr. Thompson. She was then asked the question, What was the terms of the agreement under which yon went into the employment of Mr. Thompson ? ” This was objected to by defendant as being incompetent under section 829 of the Code of Civil Procedure. The objection was overruled and defendant excepted. The answer was, He was to pay me five dollars a month when I went there. That he could not afford to pay me more, but he said it would be all made up to me.” The following questions were also asked and answers received under like objection, ruling and exception : “ Q. Was there, subsequent to that time, any other or different agreement made by and between yon and Mr. Thompson in regal’d to your services ? * "x" * A. No. * * ';;' Q. From whom did yon receive this note? (The one in suit.) * * * A. From Charles E. Thompson. Q. Where ? * * * A. At his house on the 7th day of May, 1898, the same day it was written. Q. What did he say at the time he delivered the note to you ? * * * A. He told me that in time I must present it to-young Charley and he would pay me. * * * Q. Was there anything more that he sajd to you concerning the note ? * * * A. He said he expected some money in a few days and when it came in he would pay these notes.”

It is claimed by the defendant that the court erred in overruling the objections, under section 829, to the above questions.

Assuming, however, that the evidence was properly admitted, was-there in the case sufficient proof of a consideration ?

The note was not negotiable and did not express consideration. In Carnwright v. Gray (127 N. Y. 92) it was held, of such a note, that it imported a consideration and that the burden of showing a. want thereof was upon the defendant. This decision was based on the provisions of the Revised Statutes (Part 2, chap. 4, tit. 2, 1 R. S. 768) on the subject of promissory notes. These provisions were repealed by the Negotiable Instruments Law (Chap. 612, Laws of 1897), and I find no provision in that law that will allow us to hold that a note, like the present one, imports a consideration. In the Gar.nwright case it was evidently considered that, in the absence of a statutory provision, there was no presumption of consideration and that the burden of proving it ivas upon the party who brought the action. And that seems to be the rulo. (1 Daniel Neg. Inst. [4th ed.] § 162.)

It is claimed that the note Avas given as additional compensation for services. The character of the services, as testified to by the plaintiff, was such as to indicate that the services might be worth more than the contract price. There is, however, no proof of the actual value. At the time the note was delivered nothing appears to have been said by the decedent that the note was given for additional payment, or that the decedent then recognized any obligation, legal or moral, on account of the past services of plaintiff. In 1895, the year the decedent was sick for three months, she had received an additional payment. The note was given the same day the will was made, and the statements, shown to have been made by the plaintiff .soon after the- death, and which the plaintiff does not deny, show that the plaintiff regarded the note as a gift and upon the same basis as a legacy. The inference is that the decedent so regarded it.

Clearly, as to plaintiff’s services, there was no obligation on the decedent enforcible at law or equity to make further compensation. 'She. had been paid the contract price and had settled year after year on that basis. There is no proof that the decedent received from the plaintiff a greater value than he paid for.

Nor was there any moral obligation based upon an antecedent legal liability. In 1 Parsons on Contracts (8th ed. *434) the rule as to moral obligations is stated as follows : “ A moral obligation to pay money or to perform a duty is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the. duty, which was enforcible at law but for the interference of some rule of law.”

The statement of Thompson in 1869, if made as testified to by the plaintiff, left the matter entirely to the option of the decedent. So far as it appears it was never again referred to.

The burden was on the plaintiff to show a sufficient consideration. This, I think, she has failed to do. There was only a gift of a promise in the shape of a note, and if so, the note is not enforcible. ( Whitaker v. Whitaker, 52 N. Y. 368, 373.)

It follows that the judgment must be reversed.

All concurred, except Kellogg and Edwards, JJ., dissenting.

Judgment reversed on the law and the facts.. Referee discharged. New trial granted, with costs of appeal to the appellant to abide the ■event.  