Shaw v. Boyd

¶1'There is some difficulty in this case, in ascertaining what the evidence was, which was intended to be stated in the bill of exceptions; but by examining the charge of the Judge, we can probably arrive at a correct conclusion on this subject. From that charge, applied to the evidence as stated, I infer that the-land upon which, the defendant in this Court had made his improvement, was about'to‘be sold by the United States, and the plaintiff intended to pur*85chase it, and that before this sale he promised the defendant he -would pay him a reasonable sum for his improvements, which should be determined on by arbitrators: that after the land was sold, and he had become the purchaser, he again promised the defendant that he would pay him for the improvement.

¶2The counsel for the defendant insists, that the correct construction of the proof, as it appears on the record, is, that the promise of payment was made in consideration of the defendant’s delivering possession 'of the premises to the plaintiff: that the declaration avers such to have been the consideration, and the evidence must have been intended to sustain the aver-ments of the declaration. We certainly cannot examine the declaration to arrive at a conclusion with regard to the proof, and a fact so important as the delivery of possession of the improvements, if proved, could not have been overlooked by the Judge, when he was requested to charge the jury, that no consideration for the promise sued on had been given in evidence.

¶3The charge, excepted to, is in the following words: “ that if the jury believed that the defendant (below, plaintiff here) did, after purchase from the United States, promise that he would pay plaintiff for the improvements so made before his purchase from the. United States, and that those improvements were of advantage to the defendant, that the same was a valid undertaking and a sufficient consideration.”

¶4The authorities concur in sustaining the doctrine, that if a consideration be wholly past and executed before the promise be made, it. is not sufficient, unless the consideration arose at the instance or request of the party promising; and that request must have *86been expressly made, or necessarily implied from the moral obligation under hich the party was placed.a It i~ not pretended here that any such re~ quest was proved, nor can it possibly be implied from the nature of things. The plaintiff had never held any interest in the land before the, improvement was made: it consituted a part of the public domain. `

¶5The judgment must be reversed and the cause remanded.