witness, the manner in which it is given, and from the surrounding circumstances. The death of any party should not necessarily have any effect upon the credit to be given to testimony.

Appeal dismissed without costs.

1881.

WILBUR

V.

JONES.

BROWNELL v. RAWORTH.

[1st Division, before ALLEN, C. J., and DUFF and PALMER, JJ.] Pleading Written agreement-What is a sufficient consideration

Averment of consideration-When it may be implied.

The declaration set out an agreement in writing, providing that certain acts should be done by the defendant, but neither averred any request by the defendant to the plaintiff, nor any consideration moving from the plaintiff to the defendant, except that the plaintiff should accept a deed from the defendant of certain property, and allow the defendant to remain in possession thereof for a certain specified time.

Held, that the consideration was sufficient to support the agreement, and that in such a case a request might be implied.

The declaration in this case was as follows:

"IN THE SUPREME COURT,

"THE 6TH DAY OF SEPTEMBER, A. D. 1880.

"WESTMORLAND, to-wit: Edwin Brownell, by W. W. Wells, his attorney, sues William Calvin Raworth, who has been summoned to answer the said Edward Brownell, by virtue of a writ issued on the fifth day of June, in the year of our Lord one thousand eight hundred and eighty, out of Her Majesty's Supreme Court of Judicature. For that the said plaintiff and defendant made their certain agreement in writing on the 5th day of July, in the year of our Lord one thousand eight hundred and seventy nine, which said agreement is in the words and figures following, that is to say: Agreement made on the fifth day of July, A. D. 1879, between Will. Calvin Raworth (meaning the said defendant), and Edwin Brownell (meaning the said plaintiff). Brownell (meaning the said plaintiff), agrees to take a deed of the property conveyed by him to Raworth (meaning the said defendant), subject to the mortgages to Eliza Brownell and John Brownell, and Raworth (meaning the said defendant), is to pay Brownell (meaning the said plaintiff), $325; and Raworth (meaning the said defendant), is to pay the note to Wood for $400. It is further agreed that Raworth (meaning the said defendant), shall remain on the property until the first day of December next, and take out the crop, at which time he is to quit the property and give the possession to the said Brownell (meaning the said plaintiff). Raworth (meaning the said defendant), agrees to use the property reasonably, doing no damage beyond reasonable wear and tear. It is also agreed that the said Raworth (meaning the said defendant), is to leave on the place on the first of said December, two of the cows he now has on the place, five

1881.

April.

1881.

BROWNELL

Ra

sheep, the threshing machine and thresher on the place, the double wagon on the place, a sled, and two lead pans, and a hay fork. worth (meaning the said defendant), is to give the deed within a fortRAWORTH. night from this date, July 5th, 1879.

Witness, A. J. SMITH.

J (Signed,)
(Signed,)

EDWIN BROWNELL.

W. C. RAWORTH.

And although the said Edwin Brownell hath always and at all times, since the day of the date of said above-mentioned agreement, been ready and willing to take and accept a deed of said property mentioned in said agreement from the said William Calvin Raworth, subject to the mortgages to Eliza Brownell and John Brownell, as mentioned, and although the said William Calvin Raworth remained upon said property mentioned in said agreement, until the first day of December next after the date of said agreement, and took out his crop thereon, yet the said William Calvin Raworth has not given a deed of said property according to his promises and undertakings, in said agreement specified, but has wholly omitted, neglected, and refused, and still omits, neglects, and refuses to give to the said Edwin Brownell a deed of said property, as mentioned in said agreement, subject to said mortgages as aforesaid, according to the form and effect of his promises and undertakings in said agreement mentioned; and the said William Calvin Raworth did not give nor quit the possession of the said property, mentioned in said agreement, as having been conveyed by the said Edward Brownell to the said William Calvin Raworth, on the first day of December, in the year of our Lord one thousand eight hundred and seventy-nine, or at any other time before or since, but neglected and refused so to do, and still neglects and refuses so to do, and the said William Calvin Raworth did not use the said last mentioned property reasonably, and did do damage to the said last mentioned property beyond reasonable wear and tear, and the said William Calvin Raworth did not leave on the said last mentioned property on the said first day of December, or at any time before or since, two of the cows he had on the place or property last aforesaid, at the time of making said agreement, nor five sheep, nor the threshing machine or thresher, which was on the said property or place at the time of making said agreement, nor the double wagon which was on the said property or place at the time of making said agreement, nor a sled, nor two lead pans, nor a hay-fork, according to his said several promises and undertakings in that behalf, in said agreement mentioned, but wholly omitted and neglected so to do, and still omits and neglects so to do. By means whereof and by force of the Statute in such case made and provided, an action hath accrued to the said Edward Brownell, on occasion of the not performing by the said William Calvin Raworth of his said several promises and undertakings, and the plaintiff claims five thousand dollars damages."

To this declaration the defendant demurred, and assigned as grounds for demurrer "that the said declaration does not dis

close any consideration for the making of the promises therein alleged to have been made on the part of the defendant."

Joinder thereon.

2

February 8. A. G. Blair, in support of the demurrer. The plaintiff is to do nothing. There is clearly no consideration : Aldrich v. Cooper;1 2 Wash. R. P. 112; Strong v. Converse ;2 Drury v. Tremont Improvement Co.; Billinghurst v. Walker; Tweddell v. Tweddell.

[PALMER, J., refers to McPhelim v. Weldon as to liability of purchaser of an equity of redemption being bound to pay off the mortgage.]

D. L. Hanington, contra. If it may be prejudical to plaintiff it is enough. Plaintiff agrees to take a deed; he would be bound to do it. We were bound to take a deed within a fortnight, which defendant agrees to give. Taking the deed, subject to two mortgages might be very prejudicial to the plaintiff. Prejudice to the plaintiff would be a good consideration. The parties have manifestly fixed the value of such prejudice by defendant agreeing to pay plaintiff so much cash, and to pay Wood $400. The authorities cited on the other side do not interfere with my contention that there were mutual promises here;-two on the part of the plaintiff,—one to take the deed subject to the mortgages; the other to make defendant his tenant. Hitchcock v. Coker; Bolton v. Madden;" Bainbridge v. Firmstone. Cheale v. Kenward; Chit. Contr. (10 ed.) 29; Add. Contr. 12, 13.

8

Blair, in reply. Substantially the argument of the other side rests on the first clause of the agreement; but it is nothing more than an agreement to accept a gift. He does not agree to pay anything for it. [PALMER, J. Is it not the same as if plaintiff had agreed to accept a conveyance of this property ?] Yes, but it is nothing more than a gift after all. Feeling this my learned friend contends that the land being subject to mortgages, it imposes a burthen on the plaintiff. But I say no authority can be cited to shew that plaintiff, under this agreement, would be under any personal liability to pay the mortgages.

1881.

BROWNELL

V.

RAWORTH.

1881.

In McPhelim v. Weldon,' the mortgagee himself purchased BROWNELL the equity of redemption; the reason of the decision was that RAWORTH. he bought the equity of redemption, and took the property, subject to pay the mortgages. In re Beckwith.2

V.

Cur. adv. vult.

The following judgments were now delivered. ALLEN, C. J. The declaration in this case sets out an agreement in the following words:

"Agreement made the 5th day of July, 1879, between Wm. Calvin Raworth (defendant), and Edwin Brownell (plaintiff). Brownell agrees to take a deed of the property conveyed by him to Raworth, subject to the mortgages to Eliza Brownell and John Brownell; and Raworth is to pay Brownell $325, and Raworth is to pay the note to Wood for $400. It is further agreed that Raworth shall remain on the property until the 1st day of December next, and take out the crop, at which time he is to quit the property and give the possession to the said Brownell."

It then stated that Raworth was to use the property in a reasonable manner, and leave certain stock upon it on the 1st December, and concluded as follows: "Raworth is to give the deed within a fortnight from this date."

The declaration averred that though the plaintiff had always, since the date of the agreement, been ready and willing to accept from the defendant a deed of the property mentioned, subject to the mortgages; and though defendant remained upon. the property until the 1st December, and took the crop, yet the defendant had neglected and refused to deliver the plaintiff a deed of the property.

The question is, whether a sufficient consideration appears, to support the agreement.

The general rule is, that an executory agreement, by which the plaintiff agrees to do something on the terms that the defendant agrees to do something else, may be enforced, if what the plaintiff has agreed to do, is "either for the benefit of the defendant, or to the trouble or prejudice of the plaintiff." Com. Dig. Action on the Case upon Assumpsit" (B. 1.), Bolton v. Madden. A sufficient consideration may arise, either by reason of a benefit resulting to the party promising by the act of the promisee, or by reason of the latter sustaining any loss or inconvenience, or subjecting himself to any charge or obliga

15 All. 358.

25 All. 365.

3L. R. 9, Q. B. 55.

tion, however small the benefit, charge, or inconvenience may be: Chit. Con. (8th ed.) 20.

The case of Bainbridge v. Firmstone1 is an instance of the great liberality exercised by the courts in the application of the above rule. In that case, the declaration stated that in consideration that the plaintiff at defendant's request, had consented to allow defendant to weigh two boilers of the plaintiff, the defendant promised to give them up after the weighing, in as good condition as they were in at the time of the consent: breach, that defendant did not give up the boilers, &c.; it was held that there was a sufficient consideration. Lord Denman

said:

"The defendant had some reason for wishing to weigh the boilers, and he could do so only by obtaining permission from the plaintiff, which he did obtain by promising to return them in good condition." And Patteson, J., said:

"I suppose the defendant thought he had some benefit; at any rate there is a detriment to the plaintiff from his parting with the possession for ever so short a time."

The declaration in the present case, does not allege, as in Bainbridge v. Firmstone, that the plaintiff's agreement to take the deed was made at the request of the defendant, and this omission has caused some doubt as to the sufficiency of the declaration. The agreement is certainly somewhat obscure; but if in a case where the promises are express, it is essential to the validity of the plaintiff's promise, that it was made at the request of the defendant, I think this is a case in which a request might be implied. If so, it may be said that the defendant had some reason for wishing the plaintiff to take a conveyance of the property, and in that case, it would be assumed that his doing so would be some benefit to the defendant. But even if this were doubtful, I think it might reasonably be presumed that a person who agrees to take a conveyance of property subject to a mortgage, necessarily makes himself liable to some charge or inconvenience. Therefore, that which the plaintiff agreed to do, was either a benefit to the defendant, or a trouble or loss of some kind to himself: either of which would be a sufficient consideration to support the agreement.

I think the plaintiff is entitled to judgment.

18 A. & E. 743.

1881.

BROWNELL

V.

RAWORTH.