
    James Newell vs. Peter Fisher, administrator of George Fisher, deceased.
    A note executed by a man when so intoxicated as to be incapable of transacting business, is not obligatory on him ; and much more is this the case where the intoxication has been brought about by the contrivance of the other party.
    A father having been induced, while in a state of intoxication, to execute his note for the indebtedness of his adult son, which he had refused to do when sober ; after the maturity of the note, and while in a state of sobriety, promised the holder to pay the note if he would wait until the fall; held, that the note having been given during a state of intoxication and without any consideration whatever, could not be rendered valid by the subsequent promise and forbearance ; the holder of the note could have made no previous demand on which a recovery could have been had, to make the forbearance to sue a legal consideration.
    In error from the circuit court of Attala county; Hon. Morgan L. Fitch, judge.
    
      On the 23d of April, 1844, Peter Fisher, administrator of George Fisher, deceased, sued James Newell upon the latter’s note for $1002-13, dated January 14th, 1843, and due one day after date, to the order of George Fisher. The defendant plead non-assumpsit, accompanied by a written notice that he would establish on the trial that the note was procured by “undue means,” and was without consideration. On the trial, John W. Anderson proved for defendant, that, on the day of the date of the note sued on, he went to Benton with the defendant, who was his fat.hei%in-law, to make a settlement between George Fisher and the defendant. The defendant stated to the plaintiff's intestate that he would not settle the notes of his son William S. Newell, amounting to about $500, then held by Fisher; but he would assume a note for $200 of William’s, held by Fisher, but payable to a different person. The defendant was then sober; but before the settlement between Fisher and the witness, as agent for Newell, was over, Fisher had treated the defendant so often, he had got drunk and went to sleep; the settlement made included the notes of William, which his father had refused to pay. The witness awoke the defendant, and told him how the settlement had been made; he said it was right, and would have to come out of the old man any how, or words to that effect.
    These notes of William Newell were all included in the note sued on. At the time the defendant signed the note, he was, in witness’s opinion, incapable of exercising his reasoning powers, but signed it at the urgent solicitation of Fisher. He did not consider defendant capable of doing business at the time he signed the note; when defendant was drinking, he was incapable of doing business, and appeared to lose his mental powers as much so as any man he ever saw. George Fisher was a correct man, and if errors were made in his accounts, he was prompt to correct them.
    William S. Newell, the son of the defendant, stated that he called on George Fisher, after the making of the note sued on, before his death, and complained of his notes being included in the note of his father, and Fisher promised that he would de duct the amount of these notes from the note sued. on. That he (witness) promised Fisher he would pay the notes of his included in the note sued on, if he could collect what was due him.
    The certificate of William S. Newell’s discharge in bankruptcy was read, from which it appears that on the 15th of November, 1842, he filed his petition, on the 2d of January, 1843, was declared a bankrupt, and on the 4th of December, 1843, was finally discharged from his debts.
    Morgan L. Fitch proved for plaintiff, that George Fisher was a man of probity; his custom was to make his customers welcome by liquor, usually placed on the counter, and they drank or not as they pleased.
    Robert McKinstry, for plaintiff, proved that in February or April, 1844, he heard a conversation between Peter Fisher and defendant, in which the defendant said if the plaintiff would indulge him until fall, the note should all be paid; and stating, that a part of the consideration of the note was an account of his son William’s; and that he ought to have time on the note, but that if the plaintiff would indulge him until fall, he would pay the whole note; the defendant was an ignorant man, and could not write, but was sober when this conversation occurred.
    On this proof, the court refused to instruct the jury for plaintiff, that the forbearance of a suit is a good consideration to support a promise. If they believe, from the testimony in this case, that there was a forbearance, then the law is for the plaintiff, and they will so find; but instructed them that, if they believed the promise, on the part of James Newell, to pay the notes of William S. Newell, was made before the final discharge in bankruptcy of William S. Newell, it constituted a good and sufficient consideration for the promise, and the law is for the plaintiff.
    The defendant asked these instructions, which were refused:
    1. If they believed, &c., that the defendant did not assume in writing, and for an adequate consideration expressed in writing, to pay th^ notes of William S. Newell, he was not liable to pay their amount.
    
      2. That if the notes of William S. Newell were included in the note sued on, the consideration for their assumption by the defendant must be shown, and could not be implied.
    3. If the notes of William S. Newell were barred by his decree in bankruptcy, the note of defendant to that extent was not obligatory on him.
    4. If the intestate promised to deduct the amount of William S Newell’s notes from the one sued on, the defendant is not bound to that extent.
    5. That if the defendant was under no legal and moral obligation to pay the notes of William S. Newell, and those notes were included in the one sued on, before the new promise in consideration of forbearance was made, this new promise is not obligatory.
    The court below gave some instructions for the defendant, which need not be noticed.
    The jury found for the plaintiff the full amount of the note, and the defendant sued out this writ of error.
    
      R. Huntington, for plaintiff in error.
    1. Where forbearance is the consideration, the debt forborne must be valid. Chitt.y on Con. 29, 30, (Springfield edition, 1839); 4 East, 455; 1 B. & Ad. 604. So the debts assumed must be valid and recoverable.
    2. The forbearance in this case was a consideration precedent, prescribed by James Newell to Peter Fisher, the administrator, to be performed by the latter before he could demand payment of all the note, &c., as promised in February or April, 1844. Peter Fisher, so far from performing this condition, by forbearing until the autumn of 1844, commenced suit on the note in question on the 23d day of April, 1844. He could have recovered no judgment, had he declared on the promise, without averring and proving the performance on his part of the said condition; and much less, without proving performance, should he make advantage of the said promise by way of evidence to bolster up another promise made to George Fisher, the intestate.
    
      3. The promise of James Newell to Peter Fisher was made in the spirit of compromise, and on the principle of compromise it amounted to nothing, because Fisher did not accept the terms on which the promise (to wit, the overture for compromise.) was made. Besides, if the assumption were fraudulently procured, it could not be confirmed by the subsequent promise. 4 S. & R. 483 ; 5 Greenl. 127 • Chitty on Con. 527a.
    4. The court below also erred in refusing to give the first and second instructions to the jury, asked for by the defendant. The defendant, holding in view the note sued on as an assumption by James Newell to pay the four notes of William S. Newell, by these instructions insisted,
    1st. That there was no consideration for the assumption. Hemingway v. Hicks, 4 Pick. 500; Chitty on Con. 414, n. 1; contra, Strange, 264; 4D. &R. 211; 10 B. & C. 578; 1 C. & J. 231; Chitty, Pr. 9; 2 Camp. 447 ; 2 B. & C. 483; 11 Mod. 226.
    2d. That the consideration for the assumption was not in writing. The English courts have decided that the consideration must be expressed in writing. Chitty on Con. 409, and notes; 5 East, 10; 4 B. & Aid. 595; 6 Moore, 86; 3 Bing 107, 112, 113. So also was it decided by the New York courts before any statute in that state required it. 3 J. R. 210; 8 lb. 29; 15 Wend. 343. The words, “for value received,” import only a prima facie consideration, as between the original parties.
    3d. That the consideration for the assumption cannot be implied, not even such as forbearance. 15 Wend. 182.
    4th. That the cancelling by George Fisher of the four notes, was not a sufficient consideration for the assumption, &c. They were not cancelled at the request of William S. Newell, nor at the request of James Newell.
    5. When a contract is entire, and part of the consideration is against law, the whole contract is void, and fraud vitiates the entire contract. Chitty on Con. 536c; Croke, Eliz. 199; Croke, Jac. 103; Sir T. Jones, 24; 3 Taunt. 226; 5 New Hamp. 196; 6 lb. 225; 15 Pick. 159.
    
      
      W. G. Thompson, on same side.
    The contract of James Newell, in giving his note to Fisher, was void, having been made in a state of complete drunkenness, occasioned by the contrivance of Fisher. Chitty on Con. (6th Am. ed.) 139; 3 Camp. 33; Sentance v. Poole, 3 Car. & P. 1; Fenton v. Holloway, 1 Stark. R., 126. And the contract being void, was not confirmed by any subsequent act of Newell.
    The defendant below proved that the note was taken in part for the debt of another person, contracted before the execution of the note. The plaintiff introduced no proof of any consideration for so much of the amount of the note. And the jury was misled by the charge of the court.
    Tbepromise of Newell to pay the note, made subsequently to its execution, was qualified by a condition imposed upon Fisher; which condition was not complied witR
    
      Wm. Thompson, on same side.
    
      John Battaile, for defendant in error.
    The evidence shows that the court was right on the instructions, and the jury in their verdict. The witness called to prove the drunkenness of the defendant, James Newell, states, that he went to Benton with him to make the settlement with said George Fisher, and that the settlement was between him as agent of James Newell and George Fisher. It is proven that James Newell, both before and after giving the note for $1002, agreed to pay and contemplated paying the notes of his son, Wm. S. Newell. The subsequent promise to pay to the administrator, as proven by McKinstry’s deposition, destroys the testimony of Wm. S. Newell, even if it were of any legal effect before. Under our statute of frauds, it is sufficient if the promise or agreement to pay the debt of another, or some memorandum thereof, be in writing, and the consideration need not be in writing; in this it differs from the English statute. And so the law has been always understood. A bankrupt is under a moral obligation to pay his debt after certificate. No fraud was committed by George Fisher.
   Mr. Justice Clayton

delivered the opinion of the court.

The evidence in this case shows, that Newell being indebted to George Fisher, deceased, who was a merchant, went with his son-in-law to Benton to make a settlement of his account. Fisher urged him to assume certain debts of his son, William S. Newell, which he positively refused to do. During the day, to use the words of the witness, “Fisher treated the defendant so often that he got drunk, and went to sleep.” The settlement was made with the son-in-law ; Newell was roused out of his sleep, and at the urgent solicitation of Fisher, signed the note, which included in its amount the notes of the son, and which he had refused to pay in the morning, when sober. The witness says, “ he did not consider the defendant capable of doing business at the time he signed the note, and that when he is drinking, he appears to lose his mental powers, as much as any man he ever saw.”

The son was of age when his debts were contracted, and was discharged under the bankrupt law, soon after the giving of this note.

Under this state of facts, it is very certain that the defendant was not bound by the note for the amount of William S. Newell’s debt. His state of intoxication, amounting almost to insensibility, deprives the note of all obligation. The extreme state of lintoxication Avhich deprives a man of his reason, will at law invalidate a deed obtained from him while in that condition. So long as a person remains in that situation, he is incapable of contracting, since it renders him incapable of consent. Cooke v. Clayworth, 18 Ves. 15; Arnold v. Hickman, 6 Munf. 15; Brandon v. Old, 3 Car. & Payne, 440; Chitty on Con. 112. Much more is this the case where the inebriety has been occasioned by the contrivance of the other party. Fenton v. Holloway, 1 Stark. R. 126. It matters not, that it was the general habit of Fisher to treat his customers, their contracts, “when not capable of doing business,” are not binding upon them.

It is in proof, that on a subsequent occasion, when the defendant was sober, he promised the plaintiff to pay the whole note, if he would wait till the fall. The effect of such a promise is thus stated by a late writer. “In order to render the agreement to forbear, and the forbearance of a claim a sufficient consideration, it is essential that such claim be sustainable at law; the consideration fails, if it appear that the demand was utterly without foundation.” Chitty on Con. 30. In Lloyd v. Lee, Strange, 94, the court says, forbearance is no consideration where there was originally no cause of action.”

In this case there never was any obligation on the defendant to pay the debt of William S. Newell previous to this promise. Not only was the note given during a state of drunkenness, but it was wholly destitute of consideration. The subsequent promise and forbearance gave it no validity. There was no previous demand on which a recovery could have been predicated.

The charges of the court below were in opposition to this view of the law : the judgment will therefore be reversed, and a new trial awarded.

J udgment reversed.  