Giddings v. Giddings' Administrator.

whom it was so addressed, viz.: "Henry F. Giddings and others." Benjamin did die without calling for the packet, and thereupon Frisbie, for the purpose of ascertaining who were meant by the word others," assumed to open it, and delivered the notes to the several payees named therein. Had Frisbie been on the eve of a journey to Ellisburg, and had Benjamin handed him this packet without a word, the legal construction of the act would have been: "Deliver this package to the parties to whom it is addressed unless I exercise the right I possess by implication to direct you otherwise before the commission is executed." In this case the right to countermand the direction upon the envelope was extended by oral reservation to cover the whole period of Benjamin's life; but the principle remains the same, and the delivery, having been completed, will not be disturbed. There was a perfect consonance in the proved intentions of the parties and the manner in which they were carried out. The precise intention of Benjamin with regard to the notes as found to have been expressed by him to his brother and three nephews was gathered by Frisbie from the oral and written directions of Benjamin to him, and from no other source, and carried out by him to the letter. We find in this whole transaction all the elements which in law are held to constitute a valid delivery through an agent — that Frisbie received the note in suit as agent for the payee, subject to an option of recall by the maker, in like manner as a carrier receives goods as the agent of the consignee, subject to the option of the consignor to stop them in transitu, held it as trustee for the payee, and having completed the delivery in accordance with the direction upon the envelope and the intention of all the parties, it took effect back by relation to the original deposit with him, and constituted a full and complete delivery on that date.

The defendant seeks to avoid the note upon the further ground of want or inadequacy of consideration. The case shows that Joseph originally had a legally enforceable claim for his distributive share in his mother's dower estate; that said claim was never presented nor enforced by him, and that the interest was possessed and enjoyed with his tacit consent and permission, by Benjamin. "The defend ants having received a benefit by the permission of the plaintiff, is a good consideration." Davis v. Morgan, 6 D. & R. 42; 4 B. & C. s. So also is an outlawed legal claim. Hawley v. Farrar, 1 Vt. 420; Eastwood v. Kenyon, 11 Ad. & E. 438; Lee v. Muggridge, 5 Taunt. 37; Smith v. Jameson, 5 T. R. 603; Esp. N. P. 116; Bull. N. P. 147;

Giddings v. Giddings' Administrator.

Barlow v. Smith, 4 Vt. 139, 144; Glass v. Beach, 5 id. 172; Boothe v. Fitzpatrick, 36 id. 681. That the consideration for the note was a certain specific outlawed claim, and less in amount than the face of the note, is immaterial in the absence of fraud or mistake upon the part of either of the contracting parties. In Oakley v. Boorman, it is said: A promise or obligation cannot be defeated in whole or in part, on the ground of the inadequacy of the compensation received for the obligation incurred the slightest consideration is sufficient to support the most onerous obligation; the meaning of the rule that you may impeach the consideration is only that you may show fraud, mistake or illegality in its concoction, or non-performance of the stipulations of the agreement on the part of the promisee. 21 Wend. 588. Contracts entered into by parties knowing their rights, though upon inadequate consideration, will not be set aside in law. Har rington v. Wells, 12 Vt. 505; Paige v. Ripley, 12 id. 289. Nor in equity. Stephens v. Bateman, 1 Bro. C. C. 22; Griffith v. Spratley, 1 Cox, 383; Collin v. Brown, 1 id. 428. Family agreements are especially favored in this respect. Stockley v. Stockley, 1 Ves. & B. 23; being based upon good as well as valuable considerations. Persse v. Persse, 7 Cl. & F. 279; 1 West, 110.

The defendant claims that if any recovery can be had in this action it should be only for the amount found by the referee to be the actual value, at the time the note was given, of one-third of Joseph's share of the dower interest. It seems to be well settled that to entitle a defendant to an abatement from the sum for which the note was given, in a case of this kind, two things at least must concur, viz., fraud upon the defendant in procuring the note for the sum named, or at least, a failure of the consideration from the understanding of the parties at the time, and an ability by computation to fix the amount to be deducted. Walker v. Smith, 2 Vt. 539; Stone v. Peake, 16 id. 213; Harrington v. Wells, 12 id. 505; Harrington v. Lee, 33 id. 249. Both these elements are lacking in the case at bar. No fraud is alleged and no misunderstanding about or failure in the consideration. And it is not found with certainty what the actual value of Joseph's share in the dower estate was at the time the notes were given; nor is it found affirmatively that in the settlement the fifty years' use and the purchase-money of Joseph's distributive share of the farm, for which Joseph once had a legal claim against the estate of his father, and which inured, at least par tially, to the benefit of Benjamin, were not taken into consideration

Jackson v. Jackson.

as forming a part of the consideration of the notes. Upon such facts as these, it would be extremely hazardous, to say the least, to undertake to reduce written contracts or promises to a quantum valebat.

Judgment reversed, and judgment for plaintiff on the report for the larger sum named, with interest and costs; to be certified to the Probate Court.

JACKSON V. JACKSON.

(51 Vt. 253.)

Surety — recovery by, of usurious interest paid for principal

One who becomes a surety on a note, at the request of the principal, and with him agrees to pay usurious interest thereon, and who pays the note after maturity, with such interest, may recover of the principal the money he so pays.

A

SSUMPSIT. The facts are stated in the opinion. The plaintiff had judgment below.

for defendant. The plaintiff can recover only what he was bound to pay. Hargrave v. Lewis, 3 Ga. 103; Thurston v. Prentiss; 1 Mich. 193.

E. R. Hard, for plaintiff.

Ross, J. It is found by the referee that in 1856 the plaintiff signed for the defendant, as surety, a $1,000 note, payable in one year from its date, with the interest annually, and that at the time the money was obtained and the note given, it was "agreed between all the makers and the payee, that ten per cent annual interest should be paid on the note." The defendant had all the money on the note and took it with him to California. When the note became due, the defendant did not pay it, as it was his duty to do, and the note was allowed to run until 1862, when the plaintiff and the other surety took it up, and paid to the payee, with what they had paid before that time as interest thereon, ten per cent interest on the note. The only question is, whether the plaintiff is entitled to recover the extra

Jackson v. Jackson.

interest which he paid on the note. At the request and for the benefit of the defendant, the plaintiff'signed the note, and stipulated that ten per cent should be paid on the note, not that ten per cent should be paid on it for the year before it became due, but on the note, that is, so long as the note remained unpaid. This is the contract which the plaintiff entered into at the request and for the benefit of the defendant. The defendant never relieved him from it, nor notified him that he did not wish him to abide by it. When, therefore, the plaintiff paid the holder of the note his half, with ten per cent interest thereon, he paid it in fulfillment of the contract which the defendant had requested him to enter into as his surety, and so paid it at the defendant's request. It being paid at the defendant's request, the fact that the excess above six per cent was usurious, and for that reason its collection could not have been legally enforced, can make no difference. The defendant had the right to pay it, and to request the plaintiff to pay it for him. When paid by the defendant personally, or by the plaintiff as his agent at his request, he alone had the right to recover it back. It was equally at the defendant's option to have it paid, and to waive its recovery back when paid. Having exercised his option to have it paid, and having not only requested, but honorably bound the plaintiff to pay it, the fact that it was a claim not enforceable in law is immaterial. If the defendant had requested the plaintiff to make a gift to any one of a certain sum of money, he could recall the request until the money was actually passed over but, after the money had passed, he could not revoke it, nor be heard to say that the law would not have compelled him to have executed his request to the plaintiff to make the gift. As between the plaintiff and defendant, it was a payment by the plaintiff of money to the use of the defendant at his request. The counsel for the defendant concede that the extra interest paid for the year before the note fell due is recoverable because paid at the defendant's request. But as we have seen, by the terms of the stipulation entered into by the makers of the note with the payee, ten per cent was to be paid on the note. And as between the plaindefendant to put an end

tiff and defendant, it was the duty of the to the existence of the note by paying it. The stipulation was a request to plaintiff to pay the ten per cent until the defendant, or some other one in his behalf, did end the existence of the note by its payment. Ford v. Keith, 1. Mass. 139. This holding does not conflict but is in accord with Thurston v. Prentiss, 1 Mich. 193, cited VOL. XXXI - 87

State v. Bishop.

by the defendant. In that case the plaintiff was allowed to recover the extra or usurious interest which he paid on the obligation on which he was surety for the defendant, but not allowed to recover the extra interest which he paid on his own obligation given to raise money with which to take up the obligation on which he was surety The case of Hargrave v. Lewis, 3 Ga. 162, also cited by the defend ant, is not to the point, as in that case the bill charged that the surety colluded with the payee to have judgment pass against him for the debt and usury, to defeat the orator's right to have the usury deducted on the original obligation, which implies that the surety knew it was not the intention of the principal to submit to the payment of the usury. No such fact is hinted at in the case at bar. Judgment affirmed.

STATE V. BISHOP.

(51 Vt. 287.)

Oriminal law — burglary — railroad depot—“ warehouse.”

A railroad depot is a "warehouse" within the meaning of the statute of burglary, although such buildings were unknown when the statute was enacted. (See note, p. 691.)

CONVICTION of burglary. The opinion states the facts.

E. W. Smith, for the prisoners. The breaking and entering of a railroad depot is not burglary at common law. 2 Russ. Crimes, 2. Nor under the statute. Gen. Sts. chap. 113, sec. 7; State v. Jones, 33 Vt. 443; State v. Cook, 38 id. 439; Slade v. Carney, 19 N. H. 135. Penal statutes are strictly construed. State v. Cooper, 16 Vt.

551.

Henry C. Ide, State's Attorney, for State.

REDFIELD, J. The respondents are charged in the indictment with the crime of feloniously and burglariously breaking and entering, in the night-time, the depot and storehouse of the railroad with intent, etc., to steal, and that they did then and there feloniously and burglariously steal, etc.