Hamer v. Sidway

Citation: 124 N.Y. 538

At a family celebration and in the presence of family and invited guests, William E. Story, Sr., the uncle of William E. Story, 2d, promised his nephew that if he would refrain from drinking, using tobacco, swearing, and playing cards or billiards for money until he was 21 years old, the uncle would pay him $5,000. The nephew agreed and abided by the terms of his uncle's promise. When the nephew asked for his money, the uncle replied that he fully intended to hand over the $5,000, but that he felt that he should keep the money until the nephew got his feet on the ground. The nephew never received the money; eventually he transferred his right to receive the $5,000 plus interest to another person named Hamer. Presumably Hamer was willing to give him immediate cash, say, $4,000. Before Hamer could collect the $5,000 plus interest from the uncle, the uncle died. So, in the opinion excerpted below, Hamer is suing Sidway, who is the executor of the uncle's estate, to recover $5,000 plus interest.

On his 21st birthday the nephew William E. Story, 2d, wrote to his uncle, William E. Story, Sr., to tell him that he had performed his part of the promise and thought he was entitled to the $5,000. The uncle shortly thereafter wrote the following letter to his nephew:

Buffalo, Feb. 6, 1875, W. E. Story, Jr.--

Dear Nephew; Your letter of the 31st ult. came to hand all right, saying that you had lived up to the promise made to me several years ago. I have no doubt but you have, for which you will have five thousand dollars, as I promised you. I had the money in the bank the day you was [sic] twenty one years old that I intend for you, and you have the money certain. Now Willie, I do not intend to interfere with this money in any way till I think you are capable of taking care of it, and the sooner that time comes the better it will please me. I would hate very much to have you start out in some adventure that you thought all right and lose this money in one year. The first five thousand dollars that I got together cost me a heap of hard work ... This money you have earned much easier than I did, besides, acquiring good habits at the same time, and you are quite welcome to the money. Hope you will make good use of it. I was ten long years getting this together after I was your age ... Truly yours, W. E. Story.

P. S. You can consider this money on interest.The nephew received the letter, and thereafter consented that the money should remain with his uncle in accordance with the terms and conditions of the letter. The uncle died on the 29th day of January, 1887, without having paid over to his nephew any portion of the said $5,000 and interest. Sometime after February, 1875, the nephew had transferred his entitlement to Hamer, who has presented the claim for the money to Sidway, the executor of the uncle's estate.

PARKER, J.

The question which provoked the most discussion by counsel on this appeal, and which lies at the foundation of plaintiffs asserted right of recovery, is whether by virtue of a contract defendant's testator William S. Story became indebted to his nephew William E. Story, 2d, on his twenty-first birthday in the sum of five thousand dollars.

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The defendant contends that the contract was without consideration to support it, and therefore invalid. He asserts that the promisee, by refraining from the use of liquor and tobacco, was not harmed, but benefited; that that which he did was best for him to do, independently of his uncle's promise,--and insists that it follows that, unless the promisor was benefited, the contract was without consideration,--a contention which, if well founded, would seem to leave open for controversy in many cases whether that which the promisee did or omitted to do was in fact of such benefit to him as to leave no consideration to support the enforcement of the promisor's agreement. Such a rule could not be tolerated, and is without foundation in the law. The Exchequer Chamber, in 1875, defined consideration as follows. A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.' Courts `will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him." Anson's Prin. of Con. 63.

"In general, a waiver of any legal right at the request of another party is a sufficient consideration for a promise." Parsons on Contracts 444.

"Any damage, or suspension or forbearance of a right, will be, sufficient to sustain a promise." Kent, Vol.2, 465, 12th Ed."

Pollock, in his work on contracts, page 166, after citing the definition given by the Exchequer Chamber already quoted, says: "The second branch of this judicial description is really the most important one. Consideration means not so much that one party is profiting as that the other abandons some legal right in the present or limits his legal freedom of action in the future as an inducement for the promise of the first."

Now, applying this rule to the facts before us, the promisee used tobacco, occasionally drank liquor, and he had a legal right to do so. That right he abandoned for a period of years upon the strength of the promise of the testator that for such forbearance he would give him $5,000. We need not speculate on the effort which may have been required to give up the use of those stimulants. It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle's agreement, and now, having fully performed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promisor, and the court will not inquire into it; but, were it a proper subject of inquiry, we see nothing in this record that would permit a determination that the uncle was not benefited in a legal sense. Few cases have been found which may be said to be precisely in point, but such as have been support the position we have taken.
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Order reversed and judgment of special term affirmed.