In the United States some jurisdictions, following the modingham, Cro. Eliz. 715; Bosden v. Thinne, Yelv. 40; Field v. Dale, 1 Rolle's Ab. 11, pl 8; Townsend v. Hunt, Cro. Car. 408; Oliversn v. Wood, 3 Lev. 366; Lampleigh v. Brathwait, Hob. 105.

83 See Langdell, Summ. of Contracts, Sec. 92; Stuht v. Sweesy, 48 Neb. 767, 67 N. W. 748.

84 E. g., in Evans v. Heathcote, [19181 1KB. 418, 436.

85 Roscorla v. Thomas, 3 Q. B. 234. In this case, in consideration of a precedent sale, the defendant made a subsequent warranty, but was not allowed to recover. See also Kaye v. Button, 7 M. & G. 807; Hopkins v.. Logan, 5 M. & W. 241; Harris v. Carter, 3 E. &

B. 659. But see the Irish case of Bradford v. Roulston, 8 Irish. C. L. 468.

86 Erie, C. J., Kennedy v. Broun, 13

C. B. (N. S.) 677, 740. See also Stewart v. Casey, [1892! 1 Ch. 104, 115; Wald's Pollock Cont. (3d ed.) 200.

87 See Quirk v. Bank of Commerce, 244 Fed. 682, 157 C. C. A. 130.

em English law, have reached the same conclusions, "Where a legal obligation exists," it has been said, "a cumulative promise to perform it, unless upon new consideration, is a nullity." 83 And, similarly it has been held that an express promise by a city to pay for land for the value of which the city could have been made liable only under statutory proceedings, could not be enforced.89 A promise also to pay for services previously rendered at the promisor's request, but where no enforceable implied obligation arose at the time of the request and of the rendition of the services, because a statute required the transaction to be in writing as a condition of its validity, has been held without consideration and unenforceable.90 Courts which hold that an express promise based on a past consideration can be enforced only where the scope of the promise is no greater than that of such a promise as would have been implied in fact at the time the consideration was furnished, in effect also deny validity to the subsequent promise for most purposes,91 since the existence and extent of the promise implied in fact contemporaneously with the giving of consideration is made the conclusive test and limit of the plaintiff's right. In no State has it been more clearly laid down than in Massachusetts, that a promise cannot be enforced without contemporaneous consideration merely because of a previously existing obligation, or because of services rendered at request;92 though, of course, it is law in Massachusetts, as elsewhere,93 that a subsequent promise given and accepted in satisfaction of a previous unliquidated liability arising from an implied obligation to pay for requested services, is supported by sufficient consideration; but an agreement to receive the new promise in satisfaction must be proved as matter of fact.94 It is also law everywhere that a payment made or act done on behalf of a person without his authority, may subsequently be ratified by him and he will thereby become liable.95

88 Cleaver v. Lenhart, 182 Pa. 285,37 Atl 811, citing Wimer v. Worth Township, 104 Pa. 317. So in Valentine v. Bell, 66 Vt. 280, 283, 29 Atl. 251, it is said: "It amounts to no more than this, that being liable she promised to pay. Such a promise without more, is null, and affords no ground of action." Where, however, a debtor's bill or note is given in satisfaction of an antecedent debt, the bill or note would everywhere be held supported by a sufficient consideration. Neg. Inst. law. Sec. 25, infra, Sec. 1146; Powell v. McCord, 121 111. 330,12 N. E. 262. See also supra, Sec. 124, and infra, Sec. 1922.

89Smith v. Tripp, 14 R. I. 112. See also Brule County v. King, 11 S. Dak. 294, 77 N. W. 107.

90Stout v. Humphrey, 69 N. J. L. 436, 55 Atl. 281; Kent v. Phenix Art Metal Co., 69 N. J. L. 532, 55 Atl. 256.

91 This result is reached in Connecticut in Bailey v. Bussing, 29 Conn. 1, 5. In speaking of a declaration alleging a promise to pay on request a previous liability, the court in approving the declaration said of the alleged promise to pay upon request, "that is the only promise which the law would imply from such a liability, or which if express, it would uphold in consideration of it; it being well settled that an executed consideration will not support any other promise than that which the law implies, namely, to pay upon request." See also Murtha v. Donohoo, 149 Wis. 481, 136 N. W. 158.