Wyatt v. Mayfield

Citations

• 91 Ill. 577

Syllabus

<p>1. Specific performance—of promise without consideration, when no estoppel arises. Where the principal in a joint note agreed with his surety to apply certain indebtedness due him in payment of the note, without any new consideration therefor, and with this intention took a note from his debtor, payable to the payee in the first note, but never delivered the same to the payee, and afterwards transferred the same to his brother, in violation of the agreement with his surety and his promise to the payee, and where the surety did no act on the faith of such agreement whereby his condition was changed to his prejudice, it was held, that the surety could not specifically enforce the agreement to apply the latter note upon the first, in equity, for the want of any consideration. to support the promise.</p> <p>2. Trust—agreement to apply note in payment of prior debt. Where the principal in a joint note takes a note for a debt due himself, payable to the holder of his note, and promises his surety to apply the latter note on the former, but has not been constituted an agent by the holder of the joint note to take the second one in his name, and it does not appear that the latter note was so taken in pursuance of any prior agreement or understanding between the principal in the joint note and the holder thereof, so that the latter could be compelled to take the same as a payment, there is no trust created, and the holder of the joint note can not compel the delivery of such latter note to him. Until the delivery of the latter note to him and its acceptance, the party so taking the same will be the equitable owner, and may transfer his equitable title.</p>