Brown v. Ray, 32 N.C. 72, 10 Ired. 72 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 72, 10 Ired. 72

JOSEPH BROWN vs. JAMES RAY.

jTo make a consideration for a promise, it is not necessary, that the person, 1 making the promise, should receive or expect to receive any benefit,

litis sufficient, if the other party be subjected to any loss or inconvenience.

.A trust or confidence reposed, by reason of an undertaking to do an act, though the undertaking be entirely voluntary and gratuitous, is n sufficient consideration to support an action on the promise.

Appeal from the Superior Court of Law of Ya,ncy County, at the Special term in July 1849, his Honor judge Caldwell presiding.

This was an action on the case.

The defendant, in March 1846, had a crib of corn, containing twelve hundred bushels. The sheriff, by virtue of certain executions, levied upon the corn and sold six hundred bushels to different purchasers, in lots of one hundred bushels. The plaintiff bought three lots. After the sale, the sheriff said to the purchasers and the defendant, that it was his duty to attend to the measuring and delivery of the corn, but that it was inconvenient for him to do so, and he expected that the defendant would undertake to do it. The defendant agreed to do it, and the corn was left in the crib, with the understanding, that the defendant would measure out and deliver to the respective purchasers the corn they bought, when applied for.

Afterwards, in July 1846, the plaintiff applied for his corn, and the defendant refused to let him have it; whereupon this action was brought. The Court charged, “that, to entitle the plaintiff to recover, he must not only prove a promise made by the defendant to deliver the corn, but he must also prove a consideration to support the promise.” The jury found for the defendant, and from the judgment on the verdict the plaintiff appealed,

N. W. Woodfin, for the plaintiff.

J. W. Woodfin, for the defendant.

Pearson, J.

As an abstract proposition, it is true there must be a consideration to support a promise, but, to make the charge in this case pertinent, it must be understood that the Judge assumed that the evidence did not show a consideration. In this, we think there was error, for, in our opinion, the evidence did show a consideration, and the jury should have been so charged. To make a consideration, it is not necessary that the person, making the promise, should receive or expect to receive any benefit. It is sufficient, if the other party be subjected to loss or inconvenience. A trust or confidence reposed, by reason of an undertaking to do an act, is held to be a sufficient consideration to support an action on the promise ; as if one voluntarily undertakes to deliver a cask of wine safely at a cellar, although he is to receive no pay for it, an action will lie upon the promise, if he be guilty of negligence, and a fortiori, if he retain the wine and refuse to deliver it. Coggs v. Barnard, 2 Ray 909, 919. Lord Holt says. “The owner’s trusting him with the goods is a consideration. The taking the trust upon himself is a consideration, though no body could have compelled him to undertake the trust. As he entered upon it, he must perform it.”

So, in this case, no body could have compelled the defendant to undertake to measure out and deliver the corn, when applied for; but as the trust was reposed in him, and he kept the corn, and undertook to deliver it, he is bound to do so, and is liable to this action for refusing, whether he had used the corn or still had it in his crib.

In the language of Lord Holt, “the owner trusted him with the goods, and he entered upon the trust.”

But for this promise, the plaintiff would have required the sheriff to deliver the corn. This puts the plaintiff to inconvenience, and there is an expressed trust, and an undertaking to do the act. If one undertakes to lead my horse to Statesville, and turns him loose on the road or refuses to deliver him, he is liable, although no compensation was to be given ; for he has entered upon the trust, and I have been put to inconvenience by reason of his undertaking.

“The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.” Smith’s leading cases, 1-vol. 109; where the question is fully discussed in the valuable notes of Mr. Smith, and of the American annotators, Hare and Walker.

Per Curiam.

Judgment below reversed, and a venire de novo awarded.