Mathewson v. Fitch

         I. A contract should be so construed ut res magis valeat quam pereat. This rule particularly applies where the consideration of the contract is executory, as in the case at bar. Cobbs v. Fountaine, 3 Rand. 487.

         It isnot denied that Adams v. Lansing was, at the date of the contract, pending on appeal in the Supreme Court, or that it was one of the cases referred to in it. The subject matter in litigation was a lot of land, being part of the San Antonio Ranch originally belonging to Luis Peralta, deceased. Adams asserted title to an undivided interest to said lot through certain mesne conveyances from the daughters of said Luis Peralta. Lansing claimed title to the whole under the sons. The case depended on the question whether the sons had become vested with a title to the whole ranch under the instrument called a " will," or whether it vested in all the children by descent. By reference to the report of the case, which is made evidence, it will appear that the question was decided in favor of the sons.

         It is true that was not a proceeding in rem, in which the execution of the instrument, as a matter of fact, was or could be proved for all purposes. It was known not to be so. The instrument was not susceptible of such proof, so far as it related to the San Antonio Ranch. But its legal character received a settled construction. Nothing else could have been contemplated by the contract.

         Itmay be doubted whether a particular deed contains words sufficient to pass an estate in land. But it is read in evidence, spread on the record, and comes up for judicial determination. A decision that the words are sufficient is a final settlement of the question in all cases where it arises, although the execution of the deed must be proved in all cases where it is offered in evidence.

         II. The agreement does not present a case of concurrent consideration depending upon mutual promises. It is an undertaking to pay so much on condition that the attorneys would successfully perform the legal services mentioned. The performance was an acceptance on their part. The plaintiff alleged and proved the performance, and thus established a cause of action. Poughkeepsie and Salt Point P. R. Co. v. Griffin, 21 Barb. N.Y. 454; Chit. on Cont. 63; Cobbs v. Fountaine, 3 Rand. 487.

         III. A continuing consideration, being one in part executed and in part to be executed, is a sufficient consideration. Loomis v. Newhall, 15 Pick. 159; Wiggins v. Keiser , 6 Ind. 258. The material allegation in the complaint is, that in consideration of the making and delivery of the contract thelegal services were performed.

         IV. The contract is a lawful one. Thalheimer v. Brinkerhoff, 3 Cow. 647; Perine v. Dunn, 3 Johns. Ch. 518, 519; Renedict v. Stuart, 23 Barb. 420; Ogden v. Des Arts, 4 Duer, 275; Wright v. Meek, 3 Iowa 472.

         JUDGES: Norton, J. delivered the opinion of the Court. Cope, C. J. concurring.

         OPINION

          NORTON, Judge

         The obtaining the judgment which was rendered in the case of Adams v. Lansing , 17 Cal. 629, was a performance of the condition upon which the defendant's promise to pay the five hundred dollars depended. It may be readily imagined that the defendant supposed the decree which was to be obtained would forever settle the title of the parties claiming under the " will," but that is not the thing specified in the written promise. That only requires that the decree in some case then pending, or thereafter to be instituted, should declare the sisters' title to be void, and the sons' title to be the only valid title under the " will." The Supreme Court in that case rendered a judgment that the plaintiff who claimed under the sisters had no title upon which he could recover, and that the defendant who claimed through the sons under the " will" had a title which entitled him to recover. This was, in effect and substance, a decree in that case that the sisters' title was null and void, and that the title of the sons under the " will" was the only valid title.

         The promise was not a contract depending upon a mutual promise for a consideration. The doing of the thing specified constituted the consideration which made the promise binding. In the case of Train v. Gold, 5 Pick. 380, the Court state the rule in these words: " Thus, if A promises B to pay him a sum of money if he will do a particular act, and B does the act, the promise thereupon becomes binding, although B at the time of the promise does not engage to do the act. In the intermediate time the obligation of the contract or promise is suspended; for, until the performance of the condition of the promise there is no consideration, and the promise is nudum pactum; but on the performance of the condition of the promise, it is clothed with a valid consideration which relates back to the promise, and it then becomes obligatory." To the same effect is the case of Lousdale v. Brown, 4 Wash. 148.

         The argument that the promises have done nothing in consequence of the promise, because they were already retained in the action by other parties, and were under obligation to render these services, is not valid. The complaint avers that the work was done in consideration of the promise. The answer denies only the doing of the work, and does not claim that it was done for any other person or for any other consideration. When the doing of the work was proved, the cause of action set forth in the complaint was proved under the issue presented by the answer.

         Nor is the contract void as being contrary to the policy of any law of this State in regard to maintenance. That offense was created by statute in England in early times, in order to prevent great and powerful persons from enlisting in behalf of one party in a lawsuit, by which the opposite and feeble party would be oppressed and prevented from obtaining justice. It has been said by English Judges that under the enlightened and impartial administration of justice in later times the object of the law had ceased and the law itself had become nearly obsolete. It has been said in America that the law against maintenance was peculiar to early English society, and inapplicable to American society, and, therefore, that it would not exist here unless by statute enacted here. At an early day in the history of the State of New York a statute was enacted against maintenance. At the revision of the laws of that State in 1830, the revisors, in a report to the Legislature, say: " It is proposed to abolish the law of maintenance and to qualify that of champerty, by permitting mortgages of lands in dispute to raise money, under guards and restrictions which will prevent abuse," and the mode adopted to " abolish the law of maintenance" was simply to omit enacting any statute upon the subject and repealing the old statute by which it was created or adopted. There was no special repeal of this old statute, but it was included in the general repealing act, nor was there any law directly abolishing the offense of maintenance. Under these circumstances Judge Paige, in the case of Hoyt v. Thompson, 1 Selden, 347, said: " Since the adoption of the revised statutes, maintenance has not, under our laws, been recognized as an offense, and champerty only remains an offense in a qualified form." Chancellor Walworth, in the case of Mott v. Small, 22 Wend. 405, said: " I am prepared to say that all the absurd doctrines of maintenance that grew out of the statutes which might have been necessary in a semi-barbarous age were swept away by the recent revision of the laws, and many of them had been virtually abrogated long before that time." Chancellor Sanford, in the case of Thalheimer v. Brinkerhoff, 3 Cowen, 647, said: " In many States of this Union these laws are not in force, and the want of them is said to be no inconvenience." These remarks show that, in the opinion of these Judges, in the absence of a statute creating it, the offense of maintenance does not exist in America as a part of the common law. There is no statute upon the subject in this State, and we have no doubt that the Legislature of 1850, when it adopted the statutes which were deemed necessary to organize the legal system of the State, by omitting to enact any such statute, acted in the spirit of the decisions which hold such laws inapplicable to this country, and with the direct purpose that there should be no law relating to the subject. In our judgment, in the absence of such a statute, the offense of maintenance is unknown to the laws of this State.

         Judgment affirmed.