CH. II. s. 2. Requisites of Simple Contract (Consideration). Implied consideration. Request when implied. In cases, however, where although the consideration is executed, yet the act which is stated as the consideration cannot, from its nature, have been gratuitous, but imports a consideration per se. It is not necessary either to plead or prove that the consideration was moved at the defendant's request, as this would be merely expressio eorum quæ tacite insunt. Thus, in a claim for money lent, or for the price of goods sold and delivered, it is unnecessary to prove that the money was lent or the goods delivered at the defendant's request (h). And the request which is necessary to support an executed consideration, if it have not been made in express terms, will be implied in the following circumstances:-First: where the consideration consists in the plaintiff having been compelled to do that to which the defendant was legally compellable (i). Secondly: where the defendant has adopted and enjoyed the benefit of the consideration for here his subsequent assent amounts to a ratihabitio; and such ratification may be relied on as evidence. of a previous request (k). And, thirdly: where the plaintiff voluntarily does that to which the defendant was legally compellable, and the defendant afterwards, in consideration thereof, expressly promises (1). What express But where an executed consideration is one from which the promise an law will imply a promise, no express promise made in respect of executed consideration will that consideration can be enforced, if it differ from the promise support. which the law would imply from the same consideration (m). Thus, an executed consideration, whereon the law implies a promise to pay on request,-as upon an account stated,-is not sufficient to support a promise to pay at a future day (n); and after a horse has once been sold a warranty of his soundness is without consideration and void (0). In cases such as these the consideration would appear to be exhausted by the promise which the law implies from the very execution of it; and, consequently, any promise made afterwards must be nudum pactum, there remaining no consideration to support it (p). (h) See per Parke, B., in Victors v. Davies (1844), 12 M. & W. 758, 759. (i) Jeffrays v. Gurr (1831), 2 B. & Ad. 833; Pownall v. Ferrand (1827), 6 B. & C. 439; Exall v. Partridge (1799), 8 T. R. 308; 4 R. R. 656; Grissel v. Robinson (1836), 3 Scott, 329. (k) Eastwood v. Kenyon (1840), 11 A. & E. 438, 451; 1 Smith, L. C. (1) Wing v. Mill (1817), 1 B. & Ald. 104; Paynter v. Williams (1833), 1 C. & M. (m) Per Tindal, C.J. (1844), Kaye v. Dutton, 7 M. & G. 807, 815; Roscorla v. Thomas (1842), 3 Q. B. 234 ; Jackson v. Cobbin (1841), 8 M. & W. 790; Hopkins v. Logan (1839), 5 M. & W. 241. (n) Hopkins v. Logan (1839), 5 M. & W. 241. (0) Roscorla v. Thomas (1842), 3 Q. B. 234. (p) Per Tindal, C.J. (1844), Kaye v. Dutton, 7 M. & G. 807, 816. CH. II. s. 2. A continuing consideration, being one in part executed, but which still continues, is also in many cases sufficient to support a promise (q), e.g., in consideration that the defendant had become and was the plaintiff's tenant, he undertook to manage the farm in a husbandlike manner (r); or, in consideration that the Continuing lessee then in possession had occupied the land and paid his rent, consideration. the lessor promised to save him harmless against all persons for his occupation during the term, because "the occupation which is the consideration continues" (s). the considera contract. his benefit. Tweddle v. SECT. 3. Of the Plaintiff being a Stranger to the Consideration. Formerly the cases were contradictory upon the question whether A stranger to a person can sue upon a promise, even though it be professedly then cannot for his benefit, where he is an entire stranger to the considera- enforce a tion; that is, where he has neither taken any trouble or charge upon himself, nor conferred any benefit on the promisor; but such trouble has been sustained, or advantage conferred by a third person. But although, if the actual promisee be a mere agent for Though for the person to be benefited, the latter may sue upon the agreement, notwithstanding he was not known at the time to be Atkinson. interested therein (t); yet it is clearly settled at common law, that a mere stranger to the consideration cannot enforce performance of the contract, by an action thereon in his own name, although he be the party avowedly intended to be benefited thereby (u). This well appears from Tweddle v. Atkinson (u), in which the fathers of a husband and wife in pursuance of an oral contract between them before marriage agreed in writing to pay the husband, the one 2001. and the other 100l., adding that the husband should have full power to sue them in any Court of law for those sums, but it was held that even the relationship of the parties could not establish an exception to the general rule by which the husband, as being a stranger to the consideration, could not sue upon the contract. (g) See Mattock v. Kinglake (1838), 8 A. & E. 957. (r) Powley v. Walker (1793), 5 T. R. 373; 2 R. R. 619. (s) Bac. Abr. Assumpsit (D.); Pearle v. Unger (1588), Cro. Eliz. 94; Com. Dig. Action upon the Case upon Assumpsit (B. 12). (t) See Phelps v. Prothero (1855), 16 C. B. 370; Scrimshire v. Alderton (1730), (u) Tweddle v. Atkinson (1861), 1 CH. II. s. 3. Requisites of Simple Contract (Consideration). Contract not enforceable contd. Is the rule in equity the same? In Gandy v. Gandy (x), a husband in a separation deed covenanted with the trustees to pay them an annuity for the wife and two eldest daughters, and also all expenses of maintenance of the two youngest daughters, whose school and residence was to be selected by the husband. One of the two youngest daughters by her next friend sued both the by stranger- husband and the trustees on this covenant for her maintenance, and Bacon, V.-C., emphatically (y) held the husband liable thereon; but this judgment was unanimously reversed by the Court of Appeal on the ground that the plaintiff was not a party to the contract, and that the rule was undisputed that a person not party could not sue; the Court at the same time allowing the Exception, in case of a beneficial right as cestui que trust to be an exception to the rule, but holding the plaintiff not to be within that exception on account of the discretionary character of the separation deed (z). It may be sometimes difficult to say whether this direct beneficial right exists or not. Good instances of its existence are afforded by the case of a partnership agreement giving the widow of a deceased partner a share in the profits and thus enabling the widow to maintain a claim against the survivor (a), and that of an agreement between debtor and creditor that the debtor should assign all his property to the creditor to pay 9001. out of it to another creditor, and the rest to satisfy his own debt, which was held to constitute a trust in favour of the other creditor enforceable by him in equity (b). case of trust. Consideration moving from several. Where such a trust exists, the third person though not a party to the contract, can sue upon it in any branch of the High Court by virtue of the 24th section of the Judicature Act, 1873, without joining the contractor, who is a trustee for him. The proper course seems to be for the cestui que trust to apply to his trustee to become a co-plaintiff with him, and upon his refusal to sue alone, and join the trustee as a co-defendant. Where no trust is created, a person not a party to a contract to pay him money cannot sue upon it (c). A consideration which moves from two, in which each has a separate interest, will support a promise made to one (d). (x) Gandy v. Gandy (1884), 30 Ch. D. 57, C. A. (y) See 30 Ch. D. at p. 62. (2) Leave was, however, given to the plaintiff to amend by suing in the name of the trustees, but they refused to consent to this. Afterwards the wife was joined, and the Court held that she had the necessary beneficial interest, though the children had not. (a) Murray v. Howell (1883), 25 Ch. 89, C. A. (c) Empress Engineering Co., In re (1880), 16 Ch. D. 125, C. A. And see Crow v. Rogers (1724), Str. 592; Bourne v. Mason (1833), 4 B. & Ad. 433; Colycar v. Musgrave (1836), 5 L. J. (N. S.) Ch. 335; Rotherham, &c., Co., In re (1883), 25 Ch. D. 103. (d) Jones v. Robinson (1847), 1 Exch. 454. A covenant which runs with the land-i.e., where it concerns the land, and there is a privity of estate between the covenanting parties (e) enables the assignee of the land to sue thereon (f); and in like manner, by force of 32 Hen. 8, c. 34, where a covenant in a lease concerns the things demised, the assignee of the reversion may take advantage of such covenant. (e) Per Lord Kenyon, C.J., Webb v. Russell (1789), 3 T. R. 393, 402; 1 R. R. 725. CH. II. s. 3. Requisites of Simple Contract (Consideration). Covenants running with land, (f) Spencer's case (1583), 5 Co. 16 a; or reversion. 1 Sm. L. C. Nature of implied con tracts. SECT. 1.-Generally. HITHERTO We have treated only of express contracts, that is, of those contracts of which the terms are openly expressed or uttered at the time of the making thereof. But there is a large class of contracts called implied contracts, which rest merely on construction of law, and in which there is, strictly speaking, no agreement of the parties to the terms by which they are bound. Thus, if I Implied con- employ a person to do any business for me, or perform any work, the law implies that I undertook or contracted to pay him as much as his labour deserves (a); or, if I take up wares from a tradesman without any agreement as to price, the law concludes that I contracted to pay their real value (b). tract to pay for labour; or goods. Examples of implied con. tracts. Feeding borrowed horse. Wherever a contract is once proved, the consequences resulting from the breach of it must be the same, whether it be express or implied. To enumerate all the cases in which promises have been implied would be unprofitable. Some few instances are subjoined. If a person borrow a horse for a time, the law implies that it was part of the agreement that he should feed it whilst in his Ford, Ex parte (1885), 16 Q. B. D. 305, C. A. (a) Jewry v. Busk (1814), 5 Taunt. 302. |