CH. II. s. 2. support an action on a subsequent express promise by the latter to reimburse the former (o). On the same principle it was afterwards held, that the seduction of and cohabitation with a woman was no legal consideration for an undertaking to pay her a yearly sum for her maintenance (p); and theonly cases where a moral consideration will support a contract are those in which a legal right has tion with become devoid of a legal remedy, as where a debtor has promised to pay a debt barred by a Statute of Limitations (q). Nor cohabita woman. Beaumont v. Voluntary courtesy. Lampleigh v It was long ago agreed in the leading case of Lampleigh v. Brathwait-in which the plaintiff recovered for services done by request that a mere voluntary courtesy, i.e., an act not moved Brathwait. by the previous request of the promisor,-is not a good consideration for his promise (r): although the fact of a past service raises an implication that it was to be paid for, and a subsequent promise to pay may be treated either as an admission which evidences or as a positive bargain which fixes the amount of the reasonable remuneration on the faith of which the service was originally rendered (s). of another Money lent to a deserted wife for necessaries, without any Voluntary request by her husband, appears to be recoverable from the maintenance husband (t); but the moral obligation of a father to support his man's family. own children will not of itself create any legal obligation to repay expenses incurred by another person, though with his knowledge, in their maintenance (u); and the rule in equity as to maintenance of children appears to be the same (x); though even at common law the expenses of maintaining a child under seven years of age in lawful charge of a separated wife have been held to be part of the reasonable expenses of the wife, for which she had authority to pledge her husband's credit (y). Moore. A gift of chattels is not good and binding unless it be by deed, Gift. or unless the thing which forms the subject of the gift be actually Cochrane v. delivered to the donee (z), even although the party to whom the gift is made have possession of the chattel at the time (a); (0) Eastwood v. Kenyon (1840), 11 A. & E. 438; overruling Lee v. Muggeridge (1813), 5 Taunt. 36. (p) Beaumont v. Reeve (1846), 8 Q. B. 483 overruling Binnington v. Wallis (1821), 4 B. & Ald. 650, and other cases in which cohabitation with an unmarried woman had been held good consideration, (g) See post, Ch. XXIII., sect. 8. (r) Lampleigh v. Brathwait (1615), Hob. 105, 1 Sm. L. C. The services were endeavours to procure pardon for a felony. (s) Casey's Patents, In re, Stewart v. Casey [1892], 2 Ch. at p. 115, per Bowen, L.J. (t) See Jenner v. Morris (1861), 30 L. J. Ch. 361, as commented on in Ch. VIII., sect. 3, post. (u) Shelton v. Springett (1851), 11 (x) See Jenner v. Morris, infra. (z) Cochrane V. Moore (1890), 25 (a) Shower v. Pilck (1849), 4 Exch. 478. CH. II. S. 2. (Considera- Promises founded on the perform ance of duties imposed by law. Promise to compensate witness. Promise to two to do the same thing. Promise by port bastard. and, to give effect to a promise of such a gift, merely because there was an imperfect obligation, would be to contradict this doctrine. So, in all other cases where a promise is merely gratuitous, such promise is not binding in law (b). Thus, if the master of a ship promise his crew an addition to their fixed wages, in consideration of and as an incitement to their extraordinary exertions during a storm, or in any other emergency of the voyage, this promise is nudum pactum (c) ;—the voluntary performance of an act which it was before legally incumbent on the party to perform not being, in law, a sufficient consideration. And so it would be in any other case where the only consideration for the defendant's promise was the promise of the plaintiff to do or his actually doing something, to do which he was previously bound, either to the defendant or to a third person (d). And therefore, where two joint debtors had been taken in execution, and the plaintiff discharged one of them, it was held that, inasmuch as this gave the other a right to be discharged, the promise of a third person to pay the debt, in order to obtain such discharge, was void for want of consideration (e). So the law does not, in ordinary cases, allow compensation to a witness for loss of time in attending a trial upon subpœna; it being a duty imposed upon him by law to obey such subpoena; and therefore, a promise to pay such remuneration, in consideration of the party's attendance, is not in general binding (ƒ). But though a man may be bound by his promise to one person to do a certain thing, he may make a valid promise to another to do the same thing; and therefore the delivery of goods by A. to B. at his request is a good consideration for a promise by B. to A., although A. may have made a previous contract with C. to deliver the same goods to him (g). A promise by the father of a bastard child, to pay a sum of father to sup- money to the mother if she will support the child, is good; because, by undertaking to support her bastard child absolutely, the mother assumes a larger responsibility than she is bound by law to do (h). (b) See Parker v. Baylis (1800), 2 B. & P. 73. (c) Harris v. Carter (1854), 3 E. & B. (d) Per Byles, J., Shadwell v. Shad- (f) Willis v. Peckham (1820), 1 B. & B. 515; per Lord Tenterden, C.J., Collins v. Godefroy (1831), 1 B. & Ad. 950, 956. (g) Scotson v. Pegg (1861), 6 H. & N. 295. (h) Smith v. Roche (1859), 6 C. B., N. S. 223; and see Hicks v. Gregory (1849), 8 C. B. 378; Jennings v. Brown (1842), 9 M. & W. 496; Crowhurst v. Laverack (1852), 8 Exch. 208. A promise to pay a debt already incurred by a third person is not available, unless it be made on a new consideration, such as forbearance (i). So a promise by a creditor, to accept less than the full amount of his demand, or to give time for the payment of an existing debt, is generally void, as was held by the House of Lords in Foakes v. Beer (k). So a promise to revive a security which is void in its creation-e.g., a promise to pay the amount of a promissory note, given to a creditor by an insolvent for the balance of his debt, to induce him. to sign a composition deed-was held to be a mere gratuitous promise, and therefore void (l). But a distinction is to be taken between the case of a mere gratuitous promise, and that of a promise on the faith of which one party is induced to do some act which, but for such promise, he would not have done. And, therefore, although if an uncle promise to buy a house for his nephew, that is nothing; yet, if the uncle promise to buy a house for the nephew, but requests the nephew to enter into the contract of purchase in the nephew's own name, and the nephew does so; the law implies a promise on the part of the uncle to reimburse the nephew any part of the purchase-money which he may be called upon to pay (m). CH. II. s. 2. Requisites of Simple Contract (Consideration). Promise to pay third person's debt. Promise to take less than due. Effect of an act being done on the faith of a gratuitous promise. A mere promise to subscribe to any charitable institution Promised cannot, of course, be sued upon; but an attempt has been made to charity subscription to turn such a promise into a legal obligation upon showing that irrecoverable. liability has been incurred in reliance upon the promise being Hudson, In re. performed. This was in a case where the promise was to give 20,000l. in five equal instalments, to the committee of a Jubilee Fund of a Congregational Union for the liquidation of chapel debts. After paying three instalments the promisor died. It was held, that the two remaining instalments could not be recovered against his estate, although it appears to have been the opinion of the Court that expenses for which the committee were legally liable (but no more) might have been recovered (n). The consideration must also be such as the plaintiff has the means of performing or causing to be performed; and it will, therefore, be insufficient if its performance be naturally impossible (o); as if the consideration be a promise that A. shall (i) 1 Roll. Abr. 27, pl. 49. (k) Foakes v. Beer (1884), 9 App. Cas. 605; and see post, Ch. XXIII., sect. 2. (1) Cockshott v. Bennett (1788), 2 T. R. 763; 1 R. R. 617. (m) Crosbie v. M'Doual (1806), 13 Ves. 148, 158, 160; 9 R. R. 161; Skidmore v. Bradford (1869), L. R., 8 Eq. 134. (0) See per Lord Kenyon, C.J., and Of impossible considera tions. CH. II. s. 2. (Considera- Legally impossible. Secret agreement with bankrupt. Rule where performance becomes impossible. go from Westminster to Rome in three hours; and a promise is not binding, if the consideration for making it be of such a nature that it was not, in law, in the power of the party from whom the consideration moved, to complete such consideration, and confer the full benefit meant to be derived therefrom (p). Similarly a secret agreement by one creditor with a bankrupt, that the creditor would execute a deed on which an annulment of the adjudication in bankruptcy should be founded, and that the bankrupt should pay the creditor a sum of money at a future time, is invalid, and cannot be legally enforced (q). And the same rule applies to cases in which the impossibility does not manifestly exist, as in the instances already given, at the time of entering into the contract, but where it appears subsequently thereto. And, therefore, if a man contract to pay a sum of money, or to do any other act, in consideration that another has contracted to do certain things on his part; and it turns out, before anything is done under the contract, that the latter was incapable of doing what he engaged to do, the contract is at an end (r); though a promise is not void against the party who when merely makes it, merely because performance thereof is improbable, or difficult, or to use the language of the Court, in the case of Thornborow v. Whitacre-where it is "only impossible with respect to the defendant's ability " (s). Distinction difficult. Engagement for the act of a third party. Of considerations vcid in part. An engagement entered into upon a sufficient consideration, for the performance of an act even by a third person, is binding,wherever the act is such as he might do or omit legally, or without breach of duty-even although the performance of such act depends entirely on the will of the latter (t). Thus, a promise to procure the consent of a landlord to the assignment of a lease, is binding (u). And where one of several parties in a firm agreed to introduce the plaintiff, a stranger, into it, it was held that the agreement was valid; although the other parties were ignorant of its existence, and their assent was of course essential to the admission of the plaintiff (x). A partial insufficiency of consideration does not ordinarily annul a contract, provided there be an adequate consideration left bond be impossible at the time of making (p) See Macgregor v. Dover and Deal (g) McHenry, In re, McDermott v. Boyd, Levita, Ex parte, [1894] 3 Ch. 365, referring, amongst other cases, to Nerot v. Wallace (1789), 3 T. R. 17. (r) Per Cur., Chanter v. Leese (1838), 4 M. & W. 295, 311. (s) Thornborow v. Whitacre, 2 Ld. Raym. 1164, 1165 (1706); see as to this post, Ch. XXII. sect. 6 (d). (t) Selw. N. P. 54, n. 7, 9th edit. (u) Lloyd v. Crispe (1813), 5 Taunt. 249; 14 R. R. 744. (x) M'Neill v. Reid (1852), 9 Bing. 68. to support it (y). And so it would be if the promise were in consideration, not only of the forbearance of a debt due from the defendant to the plaintiff, but also of the forbearance of another claim which could not be sustained (2). But if there be an entire consideration for the defendant's promise, made up of several particulars, and one of these consist of an agreement by the defendant, which the Statute of Frauds requires to be in writing, and which, for want of such writing, is void, the whole consideration is void, and the promise cannot be supported (a). CH. II. s. 2. of the consideration in regard to As to time, a consideration is either, 1st, executed, or some thing done before the making of the defendant's promise; 2ndly, executory, or something to be done after such promise; time. 3rdly, concurrent, as in the case of mutual promises; or 4thly, continuing. sideration must be moved by previous request. First. A past or executed consideration is not sufficient to Executed consupport a contract, unless such consideration was moved by the precedent request, either express or implied, of the party promising (b). Therefore, where A.'s servant was arrested for a trespass, and J. S., who knew A., without his knowledge bailed the servant, and afterwards A., for his friendship, promised to save him harmless; it was held that the promise was void, because the bailing which was the consideration, was the voluntary courtesy of J. S., and was past and executed before (c); and a promise without any new consideration, to pay a debt already incurred by a third person, would fall within the same principle (d). But where the plaintiff's act is moved or procured by the request of the party who makes the promise, it will bind; for though the promise follows, yet it is not naked, but couples itself with the precedent request and the merits of the party procured by that suit (e); as if, in the case last put, the third person had been credited at the instance of the defendant (f). And so an action will lie against A. for the use and occupation of premises by B., if it be proved that the latter was permitted to use and occupy them at A.'s request (g). (y) See King v. Sears (1835), 2 Cr., M. & R. 48. (z) Guthing v. Lynn (1831), 2 B. & Ad. 232. (a) Mechelen v. Wallace (1837), 7 A. & E. 49; Head v. Baldrey (1837), 6 A. & E. 459; per Littledale, J., Mayfield v. Wadsley (1824), 3 B. & C. 357; see also Earl of Falmouth v. Thomas (1852), 1 C. & M. 89, 108; Thomas v. Williams (1830), 10 B. & C. 664. (b) See Eastwood v. Kenyon (1840), 11 A. & E. 438, 451, and p. 28, ante. (c) Hunt v. Bate (1568), Dyer 272 a; (f) Fell on Merc. Guar. 36-40. |