124 N.Y. 538
On March 20, 1869, William E. Story agreed to and with William E. Story, 2d, that if he would refrain from drinking liquor, using tobacco, swearing, and playing cards or billiards for money until he should become 21 years of age then he would at that time pay him the sum of $5,000 for such refraining, to which the nephew agreed.1 The trial court found that the nephew in all things fully performed his part of said agreement.2
On the 31st day of January, the nephew wrote to his uncle claiming that according to agreement there was due him $5,000, having lived up to the contract to the letter in every sense of the word.3 A few days later, on February sixth, the uncle replied. He had the money in the bank the day the nephew was 21 years old that he intended for him, and the nephew should have the money as promised. He did not intend to interfere with this money in any way until he thought the nephew was capable of taking care of it, with the money on interest.4
The nephew thereafter consented that said money should remain with the uncle in accordance with the terms and conditions of said letter.5 Afterwards, on the first day of March, 1877, with the knowledge and consent of his uncle, the nephew duly sold, transferred and assigned all his right, title and interest in and to said sum of $5,000 to his wife Libbie H. Story, who thereafter duly sold, transferred and assigned the same to the plaintiff in this action.6
The Special Term rendered judgment for the plaintiff.7 The General Term reversed, and the plaintiff appealed to the Court of Appeals.8
Whether the nephew's refraining from drinking liquor, using tobacco, swearing, and playing cards or billiards for money until age twenty-one constituted valid consideration for the uncle's promise to pay five thousand dollars?9
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.10 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 anyone. 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.11 In general a waiver of any legal right at the request of another party is a sufficient consideration for a promise.12 Any damage, or suspension, or forbearance of a right will be sufficient to sustain a promise.13
Yes. The nephew had a legal right to use tobacco and occasionally drink liquor.14 He abandoned that right for a period of years upon the strength of the promise of the testator that for such forbearance he would give him $5,000.15 The court applies the rule that any damage, or suspension, or forbearance of a right will be sufficient to sustain a promise. It is of no moment whether such performance actually proved a benefit to the promisor.16
The nephew's refraining constituted valid consideration for the uncle's promise.17
Whether the uncle's February letter acknowledging the sum and stating he would hold the money until the nephew was capable of caring for it, together with the nephew's consent, created a trust or left only a debtor-creditor relationship?18
No particular expressions are necessary to create a trust.19 Any language clearly showing the settlor's intention is sufficient if the property and disposition of it are definitely stated.20 A person in the legal possession of money or property acknowledging a trust with the assent of the cestui que trust, becomes from that time a trustee if the acknowledgment be founded on a valuable consideration.21 His antecedent relation to the subject, whatever it may have been, no longer controls.22 It is essential that the letter interpreted in the light of surrounding circumstances must show an intention on the part of the uncle to become a trustee before he will be held to have become such.23
Yes. The uncle was indebted to the nephew in the sum of $5,000 and payment had been requested.24 The uncle recognizing the indebtedness wrote the nephew that he would keep the money until he deemed him capable of taking care of it.25 He did not say he would pay at some other time or use language that would indicate that the relation of debtor and creditor would continue.26
On the contrary his language indicated that he had set apart the money the nephew had earned for him so that when he should be capable of taking care of it he should receive it with interest.27 The nephew assented to the arrangement by consenting that the money should remain with the uncle.28
The uncle's February letter and the nephew's consent created a trust.29
Whether the statute of frauds or statute of limitations barred the plaintiff's action on the agreement or the subsequent assignment?30
The agreement which we have been considering was within the condemnation of the Statute of Frauds because not to be performed within a year and not in writing.31 But this defense the promisor could waive and his letter and oral statements subsequent to the date of final performance on the part of the promisee must be held to amount to a waiver.32 It does not appear on the face of the complaint that the agreement is one prohibited by the Statute of Frauds and therefore such defense could not be made available unless set up in the answer. This was not done.33 If the former debtor-creditor relation continued then this action is not maintainable because barred by lapse of time but if the trust relation was created the result must be otherwise.34
The statute of frauds or statute of limitations did not bar the plaintiff's action.37