Cloyes v. Cloyes

In an action by the payee of a dishonored check against the drawer, it is presumed that the chock was. given upon a sufficient consideration. (Conroy v. Warren, 3 Johns. Cas., 259; 2 Dan. *146Neg. Ins., §§ 1616, 1652.) Cheeks negotiable in form are in this respect subject to the rules applicable to negotiable paper. In an action by the payee against the maker of negotiable paper, a consideration is presumed, though the words “for value received ” are not contained in the instrument. (Kinsman v. Birdsall, 2 E. D. Smith, 395; 1 Edw. Bills [3d ed.], § 202.) But this presumption is rebuttible, and in this case the presumption was so effectually overthrown that the existence of a consideration was not a question of fact for the jury.

The defendant testified that it was given without consideration, and the plaintiff did not dispute him. The evidence does not warrant the conclusion that the marriage was in consideration of the check, or that the check w;as given in consideration of the marriage. The plaintiff testified: “ I saw the check that evening after the marriage; that was when I first saw it; I had no talk with my husband about it before the marriage; I didn’t know anything about it; knew nothing about the check before the marriage; it was a surprise to me; I don’t know who got it from the ■defendant.”

A subsisting contract to marry is not a legal consideration for new contracts afterwards entered into between the parties, unless •the new contract formed part of the consideration for the contract to marry. (Raymond v. Sellick, 10 Conn., 179, 183.) When the check was delivered the agreement to marry was a valid and subsisting contract.) The action cannot be maintained upon the theory that the check was a valid gift. The word “ gift ” signifies an actual transfer in presentí of property without consideration. The check did not transfer m presentí to the payee $100, or any part of the funds standing to the credit of the drawer upon the books of the drawee. (Attorney-General v. The Continental Life Ins. Co., 71 N. Y., 325; Coates v. First National Bank of Emporia, 91 id., 20, 26; Bank of the Republic v. Millard, 10 Wall., 152.) No specific property was transferred by the defendant to the plaintiff. It was a naked promise. The check being without consideration, this action cannot be sustained. (Harris v. Clark, 3 N. Y., 93; Raymond v. Sellick, supra; Jones v. Lock, L. R., 1 Ch. App. Cas., 25; Basket v. Hassell, 107 U. S., 602, 612 and cases there cited; Byles on Bills [13th ed.], 126.) There is a broad distinction. *147between tbe gift of tbe check or obligation of a third person, and a gift of tbe donor’s promise to pay. (Byles on Bills [18th ed.], 126.)

Tbe judgment is affirmed, with costs.

Judgment affirmed, with costs..