
    
      Rebecca Coggeshall v. Anne Coggeshall, adm'x of Peter C. Coggeshall.
    
    All executory contracts to give in future, if exclusively gratuitous; that is, without some valuable consideration, over and above the mere moral duty of the donor, are not binding in law, unless such valuable consideration be both al-ledged in the pleadings and proved at the trial.
    The words “ for valuable consideration,” as used in notes of hand, are generally a mere habitual formula, and of no consequence; because notes of hand, like bonds, do of themselves imply a consideration; but in contracts not under seal, other than such notes, the same formula is by no means so well recognized as merely a matter of course; in these instruments, the practical application and force of such apparent acknowledgment, arising from the words “ for value received,” are to be decided by the jury and not by the Court.
    The first source of proof, of real consideration, in support of the formal words “ for value received,” in an agreement, at common law, to pay money, is intrinsic to the paper; and when there has been evidence of consideration, which though not very clear, has yet been supported by circumstances sufficient to satisfy the jury, and they have found accordingly, the Court will not disturb their verdict.
    Where a son, by a written instrument, not under seal, promised, “for valuable consideration,” to pay his mother a certain sum of money, in annual instal-ments, with a proviso in case of her death, &c. and constituted a third party holder of the agreement, “ during his life,” “ to perform the trusts therein contained upon a suit being brought by the mother, after the son’s death, against his administratrix, for breach of the agreement — the Court held the third party (the holder) to be an agent, and not a trustee, and therefore rejected evidence of his declaration as to the consideration of the agreement.
    In an action of assumpsit to recover damages for the breach of an agreement to pay money by annual instalments, the Court held that the verdict could be only for the instalments due at the commencement of the action.
    
      Before Mr. Justice Wardlaw, at Darlington, October, 1847.
    This was an action of assumpsit, to recover damages for breach of the agreement contained in a paper, of which the following is a copy, to wit:
    
      “$>1560. I promise to pay, for value received, to Ee-becea Coggeshall, one thousand five hundred and sixty dollars, in annual instalments of two hundred dollars — the first instalment payable 1st July, 1841: the balance every 1st July thereafter j but if,, or when, the said Bebeeca Coggeshall dies, any balance of this note is unpaid, it shall be returned to my estate or me, my executors or administrators. This note is intended as a provision of two hundred dollars a year annuity for my mother, during her lifetime, if the sum holds out, and, during his life, is to be kept by John M. Scriven, to perform, the trusts herein contained. 13th March, 1840.
    Peter O. CoGGESHALL.,r
    Upon appeal from a former trial of this case, it had been held that the paper was not a promissory note under the statute of Anne, but such a common law agreement as required a consideration to be alleged and proved; and under the leave then given, the plaintiff had added counts to her declaration, alleging, as the consideration, first, the legal and moral obligation of Peter C. Coggeshall, whose pecuniary ability was sufficient to provide for the comfortable support of the plaintiff, an aged and destitute mother. Second, P. C. C.’s indebtedness, by reason of money had and received by him for the plaintiff, from a judgment of Nathaniel Coggeshall, (his father,) against Thomas Williamson, and from other effects which the said N. C. then deceased, had left at his death, to which the plaintiff was entitled. Third, Indebtedness upon account stated. Fourth, Indebtedness for money paid, work and labor, &c.
    The plaintiff having proved the signing of the paper, the old age of the plaintiff, and that on the day the paper was signed, P. C. C. in conversation, spoke of his debt to his mother, and of payments to be made to her, stopped, in seeming reliance upon the words “ value received,” in the paper, and the efficacy of the proofs she had offered. The defendant moved for a non-suit. The opinion of the Court in favor of the non-suit was indicated, and the plaintiff, by permission, proceeded to offer other testimony, after which the motion for a non-suit was refused.
    The following case then appeared, mainly from the record of Nathaniel Coggeshall v. Thomas Williamson, and the testimony of Thomas Williamson, who spoke as to the transactions of P. C. C. concerning his father’s bonds, and concerning his mother, from conversations had between him and the said P. C. C.
    Nathaniel Coggeshall, originally from New England, had been successful in trade on the Peedee. A debt of $25,000 was owing to him from Thomas Williamson, and for it various bonds of T. Williamson, payable to N. C. were taken. N> C. became insolvent, fell into bad habits, took the benefit of the insolvent debtor’s Act, had no credit, and for many years was supported by his son, P. C. C. the father and son residing in Darlington, the mother, and some family with her, residing at the North. P. C. C. then somewhat in debt, and with nothing besides his profession and business habits, had married, for his second wife, the present defendant, who had real estate worth $10,000, and personal worth about $25,000¿ and without at all increasing the property, P. O. C. died, leaving a widow and seven or eight children, and considerable debts. The bonds of T. Williamson were, before 1825, transT ferred to the creditors of N. Coggeshall, except one for $6000, which somehow came to the hands of P. C. C. T. Williamson said, without objection, “ I do not believe P. C. C. paid for it, but that it came to his hands to secure something to the estate.” A suit was brought, Nathaniel Coggeshall v. Thomas Williamson, on two bonds, to which, by agreement, a third, for $5000 was added on the trial. Those bonds were for $5000, $5000 and $6000, (part of the $25,000,) all dated 19th Dec. 1819, and payable 1st January, 1820, ’21, and ’22. On the trial, in 1825, upon the plea of payment, a verdict was rendered for a balance of $1648 86, with interest thereon from 20th April, 1823. In the record was found a statement, in the handwriting of the foreman of the Jury, containing an account between Nathaniel Coggeshall and Thomas Williamson, of the bonds on one side and the payments on the other, and showing the balance for which the verdict was rendered and judgment entered. P. C. C. said that his mother was--eld, blind, and very poor-, that when his father’s property, at 'the North, was sold, he had taken the $6000 bond, ánd had bought in property for the family: that he had bought a comfortable house, with a fine garden, in Col-chester, Connecticut, in which his mother was living, and that he thought with it, and by keeping a boarding house, she could support herself well. How much he paid for the house, or in whose name the title was, was not known, but T. Williamson thought he had paid $6000. and that the title was m his own name for the use of his mother and family. T. Williamson did not consider Nathaniel Coggeshall as owner of the judgment, but Peter C. In March, 1840, P. C. C. on his death bed, when John M. Scriven, who had married his sister, Thomas Williamson, and others, were present, took from T. Williamson, in payment of the balance, principal and interest, which was due upon the judgment recovered, as above, the following obligation:
    “ $3553 46. For value received, we or either of us promise to pay John M. Seriven, or his order, three thousand five hundred and fifty-three 46-100 dollars, with interest, payable in ten equal instalments, the 1st instalment payable the 1st March, 1841. 13th March, 1840.
    Thomas Williamson, [l. s.J
    George L. Williamson, [l. s.J”
    ■ P. G. 0. then speaking of this obligation, said that he thought it would allow $300 a year to his mother, as long as she lived; and at the same time he drew and signed the paper which is the subject of this suit.
    The defendant showed that John M. Seriven had received the paper now in suit, when it was' signed, had placed it in the hands of an attorney for collection, and, representing himself as agent of Rebecca Coggeshall, had given instructions concerning it: further, that after one or more instalments were due upon it, he had come to demand payment from the defendant, the executrix of P. C. C. And the following questions were propounded to a witness, for the purpose of obtaining Scriven’s declarations, that the paper in question was a gratuity. — -Seriven being within the jurisdiction of the Court: What did John M. Seriven say, when he came for the money, concerning the consideration of the paper? What did he say it was given for? Upon objection made, the question was overruled.
    The Presiding Judge. I instructed the jury that the obligation of filial piety was not a sufficient consideration to support an executory contract; and that under the first additional count, the plaintiff could not recover, unless it appeared that his promise was made in discharge of the legal obligation of a son, having competent means, to relieve the District from the support of a pauper parent — which view, I stated, was not sustained by the evidence, even if it were sufficiently alleged.
    I submitted it to the jury to decide whether the plaintiff had shown that the agreement was made in consideration of money received by P. C. C. from the judgment against T. Williamson, or other effects of Nathaniel Coggeshall, to which the plaintiff was in whole or in part entitled.
    I do not distinctly remember all that occurred on the trial, for the notice of appeal was not served immediately after the trial, nor read immediately after it was served; but I recollect that my leaning was rather against the plaintiff, and I think that my answer to the foreman, (of which mention is made in one of the grounds of appeal,) must have been that the plaintiff was bound, in the first instance, to show money received by P. C. C. for his mother from the sources mentioned, and that if that had been shown, prima facie, it was incumbent upon the defendant to show that the obligation thence arising was discharged.
    I was of opinion that the plaintiff, if entitled to recover, could recover only the instalments which, under the agreement, were due at the commencement of the suit, (March, 1845,) but upon suggestion of. the greater convenience of that course, I authorized the jury, if they found for the plaintiff, to find all the instalments due at. the time of the trial with interest thereon — which they did.
    The defendant appealed, and moved the Court of Appeals for a non-suit, on the ground—
    That the plaintiff, having declared on a common law agreement not importing a consideration, utterly failed to prove the consideration stated in her declaration, or, in fact, any consideration whatever.
    She also moved for a new trial, on the foregoing ground, and on the grounds following.
    1. Because’ the presiding Judge rejected evidence of the declaration of John M. Scriven as to the consideration of the agreement and to the effect that there was no consideration; he, the said John M. Scriven, being the agent of the plaintiff in taking the note and collecting it; the said note having been delivered to him for the benefit of the plaintiff, and retained by him, and he having caused the action to be instituted, and he being engaged in an effort to collect the note, at the time the declaration offered in evidence was made.
    2. Because the evidence of said declaration should not have been rejected, as the said John M. Scriven was, by the terms of the agreement, constituted a trustee of the fund purporting to be due thereon, and was directly interested in the event of the suit, to the extent of his commissions on the fund.
    3. Because the presiding Judge erred in charging the jury that the plaintiff being the mother of the defendant’s testator, if, from the evidence, they believed that when the testator signed the agreement, he thought that his mother needed the necessaries of life, that would be a sufficient consideration, and to this extent the moral obligation was sufficient to support the agreement, although it was clearly proved, arid not denied, that the plaintiff, at the time of its execution, (and ever since,) did not reside in this State, and was not, and is not likely to become, a charge on the poor rates of this State.
    4. Because a moral obligation is not sufficient to support a contract in any case, except where there was some pre-ex-isting legal liability which had been discharged by law, or where the party promising had received valuable consideration, and was prevented from being liable by some legal impediment, afterwards removed, at the time of the promise.
    5. Because there was no proof that the plaintiff was in necessitous circumstances.
    6. Because the defendant’s testator having received a bond of Thomas Williamson from his father, in times long past, in regard to which the witness merely expressed an opinion that the testator had paid nothing for it, the Court expressly charged the jury that they might refer the consideration of the agreement to this old transaction, although there was„not a tittle of evidence to show that there was any connection between the two transactions, or that any thing growing out of that antiquated transaction was the inducement to the agreement sued on.
    7. Because the presiding Judge, in answer to a question from the foreman, charged the jury that unless the defendant had shown that her testator had expended all the said bond, for the benefit of his father’s family, they should or might refer the agreement to that consideration, and that the onus was on the defendant to show that such was not the consideration.
    8. Because the liability of the defendant’s testator on account of the bond of Thomas Williamson, (if indeed he ever incurred any,) was old, stale, and discharged by presumption of law, from lapse of time and the attendant circumstances, and the presumption was equally strong and conclusive against its being the consideration of this agreement, without any proof to this effect. Yet, although there was no proof to this effect, the presiding Judge charged the jury that they might refer the consideration of this agreement to that liability.
    9. Because the defendant did show that her testator was-not liable for any thing growing out of the bond of Williamson, by the evidence of Williamson himself, the production of an old record, and .the papers connected therewith, and that the plaintiff had received the balance on said bond.
    10. Because the vordict of the jury, under the direction of the Court, was for all the instalments due on the contract at the trial, and not, as it should have been, for the instal-ments due at the commencement of the action.
    
      DargaN, for the motion
    On first ground, cited Martin ¡and Walter v. Stribling, 1 Spears Rep. 23 ; Thalhimer v. Brinkerhojf, 6 Cowen, 90; Matheios v. Haigh, 4 Esp. 100; Price v. Marsh, 1 Car. and Payne, 313 ; Todd v. The Earle of Winchelsea, 3 Car. and Payne, 363; 2 Starkie’s E’v. 42 and 60; Act of 1745, 3 Stat. at Lar. 668 ; Act of 1789, 5 Stat. at Lar. 112; Muckenfuss v. Heath, 1 Hill C. R. 182 ; Brown v. O’Brien, 1 Rich. Rep. 268; 1 Greenl. Ev. 113, sec. 174.— On third, fourth and fifth grounds — Lee v. Me Grudge, 5 Taunt. 37; Barnes v. Headly, 2 Taunt. 184; -v. Whit-lock, 2 Strange, 690; 1 Stark. 370 ; I/wndie v. Robertson, 7 East, 230; 2 Stark. Ev. 54; 3 Bos. and Pul. 249, note; Smith v. Ware, 13 Johns. 257; Edwards v. Davis, 16 Johns. 281; McMorris v. Herndon, 2 Bail. 56; 3 Burrows, 1672; Caldwell v. Williartts, 1 Bail. Eq. 175; Pennington v. Gittings, 3 Gill and Johns. 209 ; 4 Munroe’s Rep. 273. Sixth, eighth and ninth grounds — Estes v. Stokes, 2 Rich. 133 ; Fraser v. Perdrien, l 'Bail. 172.
    Harlee, contra.
    
    
      Bank v. Johnson, 1 Mills’ Con. Rep. 404; Fairley v. Hastings, 10 Vesey, 123 ; Duncan v. Sea-born et al. Rice R. 27; 1 Peere Wms. 287; Douglas, 140; Mc-Morris v. Herndon, Bail. Eq. 56; 1 Cowper, 290; 1 Saund. PI. and Ev. 172, and the authorities there cited; 16 Johns. Rep. 281; Com’rs of Poor v. Dooling, 1 Bail. 73; 1 Comyn on Con. 25; 1 Bos. and Pul. 554; 1 Chit, on Con. 7; 4 East, 463 ; 2 Burrows, 1056; Andrews, 370; 1 Saund. PI. and Ev. 281; Chit, on Billa, 678; 1 Henry Blk. 547.
   Richardson, J.

delivered the opinion of the Court.

This suit, brought by the mother of Peter C. Coggeshall, for a seeming filial provision, made on his death bed, for her support, must still stand on the footing, and within this prim ciple of law — that all executory contracts to give in future, if exclusively gratuitous, i. e. without some valuable consideration, over and above the mere moral duty of the donor, are not binding in law, unless such valuable consideration be both alleged in the pleadings and proved at the trial.

It was for want of both such allegation and the proof of such consideration, that the former verdict for Mrs. Cogge-shall was set aside. The judicial decision was simply this : That the undertaking of Peter C. Coggeshall to pay to Rebecca Coggeshall, was not a note of hand, but a contract at common law; and therefore a valuable consideration must be alleged, and also proved. — Sto. 43, and the cases there quoted.

This brief exposition of the case presents the main grounds of the defendant’s appeal — i. e. upon its merits: namely, that the requisite consideration, which alone can justify the verdict, was not proved. Was it not proved sufficiently, at least, to support the verdict? is the inquiry for the Court. The first source of such proof is intrinsic to the paper: “ I promise to pay, for value received, to Rebecca Coggeshall, one thousand five hundred and sixty dollars, in annual instalments of two hundred dollars,” &c. The words “for value received,” as used in notes of hand, are generally a mere habitual formula, and of no consequence; because notes of hand, like bonds, do, of themselves, imply a consideration. All such are valid contracts per se.

But in contracts not under seal, other than such notes, such a habitual formula of “ for value received ” is, to say the least, by no means so well recognized as merely a matter of course; and the present undertaking was not a note of hand.

There are many contracts in which those very words would be conclusive of a full and just consideration. But be it admitted, that the force of such a distinction between the same words in different contracts, may be reasonably impaired by the probable fact, that P. C. Coggeshall, at the time, thought he was signing a mere note of hand. It was treated as such down to the first appeal, Dec. ’46. But, take it as you will, the practical application and force of such apparent acknowledgment arising from the words “ value received,” was for the jury to decide — not for us.

Take another mark of true value received, inherent to the contract. P. C. Coggeshall was making his supposed gratuitous support for his mother, by annual instalments of $200. How came he then to limit his liability to $1560 ? . If he had not actually received that very amount, would not his gratuitous limit, as a thing of course, have been $1600, or any -other sum that could be divided equally by $200?— Could he have meant to stint his mother, by $40, in the last instalment; or what did he mean by so trifling a curtailment as $40? Did he not, then, mean to say precisely what his i words may import, to wit: I háve received value to the extent of $1560, for my mother; wherefore I promise to pay her $200 a year, as long as she lives, provided the aggregate shall not exceed the $1560, so received for her. Now let us assume’ this possible meaning of the words “ for value received,” as used in this particular contract, and do we not then perceive some sense in the statement of the bond of $6000, made in the handwriting of the foreman of the jury, in 1825, which possibly got into the hands of P. C. Cogge-shall ? Do we not see that this balance of $1648 68 may have been received by P. C. Coggeshall ? This would account reasonably for the words “ value received,” to wit, by the receipt of that $1648 68: and then you have only to.deduct commissions for collecting the money, and you have, within the merest fraction, the very sum of $1560, for which he, P. C. Coggeshall, bound himself to pay his mother by in-stalments. Why then imagine a mere executory gratuity, in this case, in the face of the words “for value received”?

Now then, couple the intrinsic evidence of the contract with the foreman’s statement, and with the evidence of T. Williamson, and how can we conclude that there was not evidence of valuable consideration to support the verdict ?

Lastly, on the head of consideration — turn to the position, character, and circumstances of Mr. Coggeshall. Circumstances are often strongly in corroboration. When a man— a lawyer too — who had before executed his last will, leaving but. little estate — on his death bed, in the midst of his family and friends — instead of adding a codicil to his will, deliberately executes such a contract, and says “for value received,” it is difficult to conclude that he used those important words as a mere habitual formula.

I must infer that he was executing some family trust and confidence, known and confided to him, rather than giving so much charity out of his small estate, away from a wife and eight children. For myself, I must say that from the evidence of such facts, and their concurrence with the position of P. C. Coggeshall, and the paper itself, I am well satisfied with the verdict, independent of the force of moral views, on which I expresssed an opinion last Monday, in Comm’rs v. Gilbert.

The second ground of appeal presents this question: was John M. Scriven made a trustee for Rebecca Coggeshall, or is he only a stake-holder or agent to keep the paper and see to the performance? If trustee, his declarations ought to have been taken as evidence; but if a mere stake-holder, or agent, in fact, they were properly rejected by the Court.— By the writing P. C. Coggeshall promised to pay the money to Rebecca Coggeshall. “ But this note,” &c. he finally subjoins, “ is, during his life, to be kept by John M. Scriven, to perform the trust herein contained.” These words must be reconciled to the promise to pay to Rebecca Coggeshall, for value received.. She required no trustee; and in order to reconcile the two' clauses, may we not fairly conclude, in the words of the evidence, “ this note is to be kept by John M. Scriven,” i. e. as an agent for the heirs of P. C. Coggeshall, to whom the money, more or less, might eventually come, as well as for Mrs. Rebecca Coggeshall, whose legal rights were instantly Tested by the letter of the contract, but who was absent.

We are of opinion that this is the rational construction.. — • The other construction would put the suit of Mrs. Coggeshall out of Court — to be brought by Mr. Scriven, the trustee: an event which, at this late day, could only be allowed upon the strictest legal right.

The last ground is upon the amount of the verdict Ought it to be for no more than the instalments due at the commencement of the action? If the amount of §51560, instead of being made payable by instalments annually, had been divided into as many special notes, instead of the instalments, each successive note would have spoken for itself; and, of course, none could have been recovered but the notes due at the issuing of the writ. But is not the contract before the Court plainly identical with the one I have supposed — i. e. if it had been so divided into different notes. I can perceive no difference. The meaning is the same, and the same law applies, of course.

It follows that upon this ground there must be a new trial, unless the plaintiff will remit from the verdict the amount of such instalments as became payable only after the commencement of the action, so as to reduce the verdict to the instal-ments due before — and it is so ordered.

Evans, J. Wardlaw, J. Frost, J. and Withers, J. concurred.

O’Neall, J.

I concurred as to the question of consideration ; but I thought all the installments due at the trial might have been very properly recoverable.

New trial, nisi.  