Sec 514

An executed act (i.e., an act already performed) cannot constitute a valid consideration unless a request to perform such act be proved. That a benefit has been conferred on me, for instance, without my request, is not a valid consideration for a promise on my part to confer a benefit on the person from whom the benefit to me proceeded. No matter how morally obligatory on me may be the duty of repaying the kindness done me, not only am I not obliged in law to repay it, but a promise is released or otherwise discharged by the voluntary act of the claimant, has been recognized and applied by other courts. See ex parte Hall, 1 Deacon, 171; Stafford v. Bacon, 1 Hill, N. Y. 532; Warren v. Whitney, 24 Me. 562; Lewis v. Simons, 1 Handy, 82; Montgomery v. Lampton, 3 Met. (Ky.) 519; Shepard v. Knowles, 7 R. I. 474; contra, Willing v. Peters, 12 S. & R. 177." As generally sustaining the text, see 1 Ch. on Con. 11th Am. ed. 69; Eastwood v. Kenyon, 11 A. & E. 438; Streeter v. Horlock, 1 Bing. 34; Oakes v. Cushing, 24 Me. 313; Manter v. Churchill, 127 Mass. 31; Bulkley v. Landon, 2 Conn. 404; Chaffee v. Thomes, 7 Cow. 358. That a release absolutely discharges a debt, see infra, sec 1034.

An executed act not a valid consideration.

1 Lundie v. Robertson, 7 East, 231; Gibbon v. Coggon, 2 Campb. 188; Pickin v. Graham, 1 C. & M. 725; By-ram v. Hunter, 36 Me. 217; Andrews v. Boyd, 3 Met. 434; Breed v. Hillhouse, 7 Conn. 523; Dorsey v. Watson, 14 Miss. 59.

2 3 Kent, 113; 1 Ch. on Cont. 55, citing, among other cases, Sigerson v. Matthews, 20 How. U. S. 496; Thornton v. Wynn, 12 Wheat. 183; Farring-ton v. Brown, 7 N. H. 271; Andrews v. Boyd, 3 Met. 434; Tebbetts v. Dowd, 23 Wend. 379.

3 See supra, sec 29 et seq.

4 Supra, sec 512.

on my part to repay it, if I did not request it, is void for want of consideration.1 The reasons may be thus stated: (1) To banish expressions of gratitude from conversation would be to impose on conversation an insufferable burden, yet expressions of gratitude would have to be suppressed if they were the subjects of suits in courts of justice. (2) In the long run, the welfare of society is more promoted by a system in which it is understood that acts of kindness are gratuitous, than it would be were it understood that when a benefit is conferred and acknowledged then a suit could be maintained on the acknowledgment. (3) To make an executed act a consideration would be to virtually declare that considerations are not necessary in cases of prior dealings between the parties, and hence to do away with the entire sanction of consideration. After a benefit, no matter how great, has been received, and the transaction is terminated, the plaintiff suffers the same detriment, and the defendant retains the same advantage, whether the promise is made or not. The past is irrevocably closed, and the promise to repay or to recompense stands by itself as gratuitous. Supposing that he has nothing to gain by promising, and nothing to lose by refusing to promise, his promise is a mere voluntary act. (4) If a past consideration will support a promise at all, it will support a promise at any future period; if it will not support a promise at any future period, which is conceded, it ought not to support a promise at all.2 - In some of the old English cases it is on a future day cannot ordinarily be sustained on an account stated, though a general request to pay may be inferred;1 nor is a promise of warranty, after a perfected sale, sustainable when from the mere fact of sale no such promise can be inferred.2

1 Supra, sec 494; Leake, 2d ed. 19; Raim v. Hughes, 7 T. R. 350; Roscorla v. Thomas, 3 Q. B. 234; Hopkins v. Logan, 5 M. & W. 241; Eastwood v. Kenyon, 11 A. & E. 438; Lonsdale v. Brown, 4 Wash. C. C. 148; Comstock v. Smith, 7 Johns. 87; Parker v. Crane, 6 Wend. 649; Johnston v. Johnston, 31 Penn. St. 450; Chambers v. Davis, 3 Whart. 40; Hopkins v. Richardson, 9 Grat. 485; McMahan v. Geiger, 73 Mo. 145.

2 See Lang. Cont. ii. 1035 et seq. The older cases - Pearle v. Edwards, 1 Leon. 102; Barker v. Halifax, Cro.

Eliz. 741; Riggs v. Bullingham, Cro. Eliz. 715; Townsend v. Hunt, Cro. Car. 408; Lampleigh v. Brathwaite, Hob. 106 - are shown by Mr. Langdell to have been on this point clearly overruled.

As an illustration of the rule above stated may be mentioned an Iowa case in 1880, where C. contracted with a railroad company to build by a particular time an extension of the track. The contract turned out badly, and C. incurred great losses. The company then agreed to pay any debts that C. had incurred in the prosecution of the held that an executed benefit, if requested, is a sufficient consideration to sustain a promise. If I receive, for instance, goods or service which I previously requested, then a promise on my part to pay for such goods or service will be held to be on a sufficient consideration. But this position cannot be sustained. Either my request implied a promise to pay or it did not. If it did, then the suit must be brought on the request, thus implying the promise. If it did not, then my promise, after the benefit has been received, is without consideration. If, to illustrate this distinction, I order goods from a grocer whom I am dealing with on the basis of paying for what I take, then my order implies a promise to pay; and when he sues me, he sues on this implied promise.1 On the other hand, if I ask a member of my family to do me a service, such a request does not imply a promise to pay;2 and not only can no suit be brought for such service, but a subsequent promise to pay for it, after the service has been received, is without consideration.3 - The question whether there was a promise to pay concurrent with the acceptance of the goods or services is to be determined from all the circumstances of the case; and where a party accepts a benefit knowing it is one for which payment is expected to be made, then a promise to pay may be inferred.4 - Where the facts in the pleading sustain the implication, there need be no express averment of request.5 - An express promise made subsequent to an executed consideration will not be sustained if it is essentially different from the promise which the law implies from the same consideration.6 Thus a promise to pay work. It was held that this agreement was without consideration. Ayres v. R. R., 52 Iowa, 478. Had the agreement been in consideration of the contractor resuming work, the law would have been otherwise. See infra, sec 852 et seq.

1 Supra, sec 7.

2 Infra, sec 719.

3 See Mete, on Cont. 194; Lampleigh v. Brathwaite, Hob. 105; S. C, 1 Smith's Lead. Cas. 7th Am. ed. 280; infra, sec 709 et seq.

4 Supra, sec 7; infra, sec 709 et seq.; 1 Saund. 264, note; Mete, on Cont. 200; Wilson v. Edmonds, 4 Foster, 546; Oatfield v. Waring, 14 Johns. 192.

5 Infra, sec 709 et seq.; Comstock v. Smith, 7 Johns. 88; Hicks v. Burhaus, 10 Johns. 243; Doty v. Wilson, 14 Johns. 382.

6 2 Ch. on Cont. 11th Am. ed. 71; Kaye v. Dutton, 7 M. & G. 807; Ros-corla v. Thomas, 3 Q. B. 234; Jackson v. Cobbin, 8 M. & W. 790.