
    James W. Lent and Another versus Manley Padelford.
    It is always allowable, and often necessary, to declare according to the legal effect and import of a written contract, rather than in its precise words.
    A promise to a judgment creditor, “ if the execution can be delayed,” is equivalent to saying, “if you will delay it,” or, “in consideration that you will delay it”
    It is not necessary that a written promise should show that the consideration has been executed; nor need the contract of the plaintiff be contained in the same paper with that of the defendant, or be reduced to writing at all.
    A declaration that, in consideration that the plaintiff would do a certain act, the defendant promised to do a certain other act, with an averment of performance on the part of the plaintiff, is sufficient without averring a promise on the part of the plaintiff.
    When a matter alleged lies equally in the knowledge of the plaintiff and defendant, an averment of notice is not necessary; as if it be an act to be done by a stranger.
    Where a promise was to do a certain act or pay a sum of money, and the defendant has not done the act, a special request to pay the money needs not to be alleged.
    Tiie plaintiffs declared, in case that a certain writ of execution in their favor, and against one Joseph Barney, was in the hands of T. Hinsdale, a deputy sheriff, which the said Barney was unable to satisfy; and that the defendant, by his written note, undertook and promised the plaintiffs, in consideration that they would delay the service of said execution until the first Monday of June then next; and, in consideration of value received by the defendant of said Barney, that the said Barney should make his appearance and be ready at Pittsfield, at the tavern of J. M., either to pay said execution, (meaning any execution that might issue upon the same judgment,) or to surrender himself to any officer who might have such execution on said day; and that, if Barney was not [ * 231 ] ready, &c., as aforesaid, the defendant * would pay to the plaintiffs the amount due upon such execution, with the interest thereon from the day of making the promise ; and the defendant reserved to himself the right to go after the said Barney, if he should go out of the state, and deliver him at the place above mentioned on the fourth Monday of June aforesaid, thereby intending to exonerate himself from his said obligation. And the plaintiffs aver that, confiding in the defendant’s said promise and undertaking, the service of said execution was delayed, &c., and no service has ever been made upon it; that said Barney did not make his appearance, &c., although the said Hinsdale was then and there ready to receive payment, or to take the body of the said Barney, that the defendant did not deliver him at, &c., on the said fourth Monday of June, although the said Hinsdale was then there ready to take his body, &c.; and that the defendant has never in any manner discharged said execution, or paid the said interest; — whereby an action has accrued to the plaintiffs to recover of him the amount due upon said execution, with the said interest. Yet though often requested, &c.
    In a second count, the plaintiffs set forth the judgment on which the execution issued, the return of the first execution, which was in force and in the hands of the deputy sheriff at the time of the promise alleged, and the issuing of an alias execution, with like averments, as in the first count.
    The defendant pleaded, 1st, the general issue, which was joined; and, 2dly, in bar, that the said Barney did, before the said first Monday in June, viz., on the 2d day of March, 1809, go inte the state of New York to reside ; that, previously to the sail-fourth Monday in June, viz., on the 17th day of the same month the same Barney did seasonably set off to return to this com monwealth, to surrender himself at the said tavern on the said fourth Monday of June, to any officer having the said execution ; and on his way, on the 19th day of June, within the state of New York, was attacked with bodily sickness, and was [ * 232 ] there of necessity confined and detained by * said sickness, so long a time that he could not possibly surrender himself, or be delivered by the defendant, at the said tavern, to an) officer having the said execution; and that, as soon afterwards as he possibly could, on the day succeeding the said fourth Monday, he arrived at the said tavern, and offered to surrender himself to the said Hinsdale, then holding the said execution.
    The plaintiffs, in their replication, traverse the said sickness, and tender an issue to the country, which is joined by the defendant.
    At the trial of the issues thus joined, which was had before Parker, J., at the last May term in this county, the plaintiffs offered in evidence, in support of their declaration, a, writing signed by the defendant, of which the following is a copy: —
    “ Whereas there is now an execution in the hands of Theodore Hinsdale, Jun., deputy sheriff, in favor of James W. Lent and William H. Folger, against Joseph Barney, for the sum of 795 dollars 74 cents, and it cannot now be paid by said Barney; therefore, if said execution can be delayed till the first Monday of June next, and in consideration of value received of said Barney, I hereby agree and promise that said Barney shall make his appearance, and be ready at Pittsfield, in the county of Berkshire, at the house of Joseph Merrick, either to pay said execution, or to surrender himself to any officer who may have the same at that time ; or I will pay the same, with the interest from this time, to said Lent and Folger. Savoy, Feb. 28, 1809. And, further, I reserve to myself the right to go after said Barney, if he goes out of the state, and deliver him at the place above mentioned on the fourth Monday of June aforesaid. — Manley Padelford.”
    The counsel for the defendant admitted the execution of the said writing, but objected to the admission of it in evidence to the jury, because it did not contain any evidence of a promise to the plaintiffs, nor of any consideration for the promise; and because it substantially varied from the declaration ; * which [ * 233 ] objection was overruled by the judge, and said writing was admitted in evidence.
    No other evidence of the promise or consideration was offered by the plaintiffs; but it was proved and admitted that Barney did not appear at Pittsfield, and offer himself to said Hinsdale on the first or fourth Monday of June, 1809, nor until the day following the latter, when he arrived there and offered to surrender himself to said Hinsdale, who then had said execution in full force. And it was admitted that the execution was in the hands of Hinsdale on the day when the said writing was signed. It was also proved ,b> parol testimony, which was objected to, that, at the request of the debtor, the agent for the plaintiffs authorized the officer to forbear arresting him, upon obtaining .the contract declared upon. It was likewise admitted that an alias execution was in the hands of the same officer on the day after the fourth Monday in June, and that, by direction of the same agent of the plaintiffs, the officer re fused to arrest the debtor, when he offered to surrender himself.
    The jury were instructed that the contract declared upon and produced was sufficient in law to support the action ; and that, if the evidence offered by the defendant on the second issue failed of proving it, they ought to return their verdict for the plaintiffs on both issues, and that the damages ought to be equal to the debt and costs upon the execution, with interest thereon from the commencement of the action.
    A verdict being accordingly found for the plaintiffs, a new trial was moved for by the defendant, because the judge admitted the writing aforesaid ; whereas it is variant from the declaration, in that it does not appear that the promise was made to the plaintiffs, nor upon such consideration as is alleged in the declaration; because the judge instructed the jury that the said writing contained evidence of a promise to the plaintiffs, and of a sufficient consideration to support the plaintiffs’ declaration, no other evidence thereof being offered; because the judge instructed the jury, if they [ * 234 ] * found a verdict for the plaintiff, to give the entire sum mentioned in said promise in damages, although it was proved that the said Barney came to said tavern in Pittsfield, and offered to surrender himself to said Hinsdale, who then had said execution in full force, on the day next after the said fourth Monday in June; and because the judge admitted parol evidence, to prove that delay of the said execution was given on receiving said promise.
    The defendant also moved in arrest of judgment; because there is no sufficient consideration for the defendant’s promise alleged in the plaintiffs’ declaration, it not appearing that any promise or agreement was made on the part of the plaintiffs, as the ground of the promise on the part of the defendant; and because the supposed promise of the defendant is a collateral undertaking, and there is no averment, in the declaration of notice to the defendant, that said Barney did not appear at the time mentioned, nor of any request to pay the money demanded before the suit was brought.
    
      Dewey and Noble, for the defendant.
    This writing ought not to have been read in evidence. It does not support the declaration, not purporting to be at all a promise to the plaintiffs. If it had any effect, it was a promise to the officer, and then it was void, as being for ease and favor. It varies from the declaration also in this, — that the promise is alleged to have been made “ in consideration that the plaintiffs would delay the service of the execution,” &c., but the writing is, “ if said execution can be delayed,” &c., and contains no promise on the part of the plaintiffs to delay the service.
    The promise was nudum pactum, being wholly without a consideration. The plaintiffs might have served their execution immediately, and neither the defendant nor Barney could have made any legal objection, because there was no engagement on the side of the plaintiffs to delay. 
    
    Nor was it competent for the plaintiffs to show a consideration by parol testimony. The consideration, being part * of the contract itself, should be expressed in the [ * 235 ] writing. 
    
    But if these objections are overruled, the defendant is entitled to a new trial for the misdirection of the judge on the subject of the damages. It was in evidence that Barney made his appearance the next day, and offered himself to the officer, who then held the execution. He came in good faith, for it appeared that he was delayed on the road by sickness. The plaintiffs, in fact, suffered nothing, for their debtor was insolvent; and although, in terms, there was a want of strict compliance with the defendant’s undertaking, the plaintiffs are entitled to nominal damages only.
    In support of the motion for arresting the judgment were cited the cases of Birles vs. Trippet, 
       and Bach vs. Owen. 
      
    
    
      Hulbert for the plaintiffs.
    The action standing continued nisi for advisement, the opinion of the Court was delivered at Northampton the following week by
    
      
       3 D. & E. 653, Cooke vs. Oxley. — 4 B. & P. 352, Champion vs. Plumer
      
    
    
      
       5 East, 10, Wain & Al. vs. Warlters. — 3 Johns. 210, Sears vs. Brink —Ibid 399, Bailey & Al. vs. Ogden & Al.
      
    
    
      
       1 Sound. 32.
    
    
      
       5 D. & E. 409.
    
   Jackson, J.

The Court have heard both these motions together, for the convenience of the parties, and to prevent delay.

The first point to be considered, in the motion for a new trial, is the supposed variance between the declaration and the writing pro duced in evidence. It is never necessary to declare in the precise words of a written promise. It is always allowable, and often necessary, to declare according to their legal effect and import, In the present case, we have no doubt that the promises contained in the writing were made to the plaintiffs. They are the only persons interested in the subject of the promises, which do not purport to be made to any other person ; and the defendant expressly promises, in the eventrwhich has happened, to pay the money to the plaintiffs. It is like the case of a common promissory note. The words of the note are, “For value received I promise to pay to A B; ” but in the declaration upon such a note it is always alleged that the defendant promised A B to pay him.

* As to the other supposed variance, we are equally satisfied that the declaration comports with the legal effect of the writing. The expression, “ if the execution can be delayed,” as introduced in this paper, is equivalent to saying, “ if you will delay it,” or, “ in consideration that you will delay it.”

The next ground of the motion for a new trial is the supposed misdirection of the judge in instructing the jury that the contract was sufficient in law to support the action. We are all satisfied that this direction was right. We have already said that the contract was made with the plaintiffs; and, indeed, it further appears, from the report, that it was made by the express authority of their agent. Even if the agent had no previous authority to make this contract for the plaintiffs, yet, if the agent proceeds immediately to execute the contract, in any part beneficial to the defendant, or prejudicial to the plaintiffs, and if the plaintiffs afterwards assent to it, and ■ go on further in performance of the contract, it shall bind both parties.

As to the consideration, there is no necessity of deciding, on this occasion, whether it must always be .expressed in the writing, according to the opinion in the case of Wain &f Warlters, because this power does sufficiently express the consideration, It does not appear whether it was of any benefit to the defendant; but it was a prejudice to the plaintiffs, viz., suspending the service of their execution from February to June. It cannot be supposed that, in such a case, the writing should show that the .whole consideration was executed on the part of the plaintiffs. That is obviously impossible in every case where the consideration is a forbearance until a future day.

ADDITIONAL NOTE.

[It has been held, in Connecticut, that the consideration of a written contract need not be expressed therein.— Tingley vs. Cutter, 7 Conn. 291 —F. H.]

But it is said that it does not appear, in this writing, that the plaintiffs agreed to forbear their remedy until June. We know of no rule that requires the contract of the plaintiffs in this case to be contained in the same paper which contains that of the defendant, nor even that the former should be reduced to writing at all. The statute of frauds, *in its most strict con- [*237] struction, would require only the motive, cause, or consideration of the promise to be expressed, so that the court could judge of its sufficiency; not that the same paper should also contain the evidence of the performance, delivery, or receipt of the thing upon which the promise is founded. It is enough if the court can decide, upon inspection of the paper, that the consideration is sufficient in law : it is a question for the jury, whether that consideration has been in fact performed or received. It appears in this case that the plaintiffs, by their agent, did authorize and assent to this contract, and that they have performed it on their part. As this agreement of the plaintiffs is not required to be made in writing, it may, of course, be proved by parol testimony.

As to the amount of damages, we are satisfied that the jury were rightly instructed by the judge. This is not merely an agreement by the defendant to do a collateral thing; nor is the money to be paid by way of penalty for a breach of the contract. We do not consider the damages, thus liquidated by the parties, to be unreason able in the event which was contemplated, and which has since occurred. The defendant has agreed, in a certain event, to pay this sum; and we have no power, in this case, to alter his agreement.

There are two grounds of the motion in arrest of judgment. The first is, that no sufficient consideration for the defendant’s promise is set forth in the declaration. The declaration states that, in consideration that the plaintiffs would delay the service of their execution, the defendant promised ; and then it is averred that the plaintiffs did delay the service accordingly. This appears to us sufficient. It is the usual mode of declaring in such case in the books of entries.

This manner of stating the consideration and the contract is not confined to cases of forbearance. It is not uncommon, in the case of goods sold, to declare that, in consideration that the ( * 238 ] plaintiff would sell and deliver to the defendant * such goods, the latter promised to pay a certain price, and then to aver that he did sell and deliver them accordingly. So, in consideration that the plaintiff would do any other specific thing, and then aver the performance, without alleging that the plaintiff had promised to do it. This is not one of the cases in which it is necessary to state in the declaration mutual promises, as the consideration of each other.

The other ground of the motion in arrest of judgment at first excited the most doubt in the minds of the Court. It is the want of averring notice to the defendant that the said Barney did not appear at the time and place prescribed, and a special request to the defendant to pay the money.

But, upon further consideration, we are all satisfied that the declaration is in this respect sufficient. The general rule is perfectly well settled. When the matter alleged lies peculiarly in the knowledge of the plaintiff, he must aver that the defendant had notice; but when it lies equally in the knowledge of the defendant, such averment is unnecessary. The case at bar comes within the latter branch of the rule. There was no act to be done exclusively by the plaintiffs. It may even be said that the matter, by which the defendant was to be discharged, was an act to be performed by himself. He promises that Barney shall make his appearance : he undertakes to have him at a day and place certain, and he must know whether he has done so.

But, without going to this length, it is sufficient if the act were to be done by a stranger. The defendant had as good means of information as the plaintiffs, and he was bound to take notice whether Barney made his appearance at the time and place appointed. It was not necessary, then, for the plaintiffs to give him formal notice of the fact; and, of course, it is not necessary to aver such notice in the declaration.

As to the want of averring a special request, we should yield with difficulty to such an objection, after a verdict [ * 239 ] on * the merits of the case. The only use of a spi rial request is to avoid vexatious suits, by giving to the defendant an opportunity of paying an undisputed demand. It is apparent, in the case before us, that it would have been a fruitless ceremony. We are not, however, satisfied that such a request was required by the strictest rules of law. The defendant may be considered as agreeing to do, or cause to be done, one of two things. When he knew that the one was not performed, he became immediately liable to perform the other. The payment of the money became a present duty, as if there had been no alternative in the original contract. In such a case, the general averment of licet scepius requisitus is sufficient.

Judgment on the verdict.

ADDITIONAL NOTE.

[See Ackley vs. Elwell, 5 Halst. 304. — Pickett vs. Cloud, 1 Bail. 362.— Wilhite vs Roberts, 7 Dana, 26. — Bradford vs. Gray, 3 Yerg. 463. — Ewing vs. French, 1 Blackf. 170. — Richards vs. Carl, 1 Blackf. 314.— Traver vs. Holsted, 23 Wend. 66. — Glover vs. Tuck, 24 Wend. 153. — Bush vs. Stevens, 24 Wend. 256. — Jones vs. Gilbert, 33 Conn. 507. — Tinney vs. Ashley, 15 Pick. 546. — Pomroy vs. Gold, 2 Metc. 500. Carroll vs. Peake, 1 Pet. 23. — F. H.] 
      
       ADDITIONAL NOTE.
      
        [Davis vs. Campbell, 3 Stew. 319. — Harrison vs. Weaver, 2 Por. 542. — Pharr vs Bachelor, 3 Alab. (N. S.) 237. — Roysdon vs. Sumner, 2 Pike, 465. — Grannis vs Clark, 8 Cow 36. — Scott vs Leiber, 2 Wend. 479. — Coonley vs. Anderson, 1 Hill. 519. — F. H.]
     
      
      
         [It has since been held, that it is not necessary that the consideration should be expressed in writing. — Packard vs. Richardson & Al., 17 Mass. Rep. 122.— Sed vide contra, Wain vs. Walters, 5 East, 10. — Saunders vs. Wakefield, 5 B. & A. 595. — Jen kins vs. Reynolds, 6 Moore, 86. — 3 Br. & Bingh. 14.—Morley vs. Boothby, 3 Bingh 107. — Atkinson vs. Carter, 2 Chitty, 403.— Lyon vs. Lamb, Fell, on Guar. 239.— Stephens vs. Winn, 2 Nott & M’Cord, 372, in note. — Violett vs. Patton, 5 Cranch, 151, 152. — Wyman vs. Gray, 7 Har. & Johns. 409. — Sears vs. Brink, Z. Johns. 210.-Clark vs. Russell, 3 Dallas, 415. — Leonard vs. Vandenburgh, 8 Johns. 29. — A rea sonable construction of the statute coincides with the preponderating weight of authority. The consideration is not only a part, but a constituent and essential part, of an agreement. — But see Sage vs. Wilcox, 6 Conn. Rep. 81. — Ed.]
     
      
      i) [See Smith va. Sparroio, 4 Bingh. 84.— Ed.]
     
      
       [In Randall vs. Everest, (2 Car. & Pay. 577,) Abbott, C. J., said, “ I am of opinion, and shall act upon that opinion, until I am corrected by a higher authority, that on any agreement for the non-performance of which damages are sought to be recovered, whatever may be the expressions used by the parties, and in whatever mode or form the agreement may be made, whether the stipulation is for a sum to be paid as liquidated damages, or for a sum in the nature of a penalty, the plaintilf shall recover such damages as, upon a view of the whole case, the jury shall think fit to give, and no more. I wish my observations to be understood as not applying to agreements under seal.” — Ed.]
     
      
       ADDITIONAL NOTE.
      Pee Berry vs. Harper, 4 Gill & J. 469. — Russell vs. Slade, 12 Conn. 455. — H.]
     