This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Outside of cases in which there was once a legal liability, though voidable, or subject to some positive defense, the doctrine of moral obligation is generally repudiated.1 Thus an attempted contract made by a married woman when such contract is void, as at common law, and when such contract creates no liability in equity or against her separate estate, is no consideration for a promise made by her after the termination of the coverture, or a change in the law, has given her capacity to make contracts;2 nor is a debt once extinguished by a valid release,3 or by compromise,4
10 Bailey v. Philadelphia, 167 Pa. St. 569, 46 Am. St. Rep. 691, 31 Atl. 925.
11 "He was not legally bound to pay them anything, but if he chose to consider that he, in good conscience, owed them, the moral debt was a consideration for the legal promise expressed in the notes." In re Sutch's Estate, 201 Pa. St. 305, 50 Atl. 943.
12Edson v. Poppe, 24 S. D. 466, 26 L. R. A. (N.S.) 534, 124 N. W. 441. 13 See Sec. 591. 14Linz v. Schuck, 106 Md. 220, 124
Am. St. Rep. 481, 11 L. R, A. (N.S.) 789, 14 Am. & Eng. Ann. Cas. 495, 67 Atl. 286.
15Linz v. Schuck, 106 Md. 220, 124 Am. St. Rep. 481, 11 L. R. A. (N.S.) 789, 14 Am. & Eng. Ann. Cas. 495, 67 Atl. 286.
16Wheeler v. State, 190 N. Y. 406, 123 Am. St. Rep. 555, 83 N. E. 54.
1 Connecticut. Cook v. Bradley, 7 Conn. 57, 18 Am. Dec 79.
Georgia. Davis v. Morgan, 117 Ga. 504, 97 Am. St. Rep. 171, 43 S. E. 732.
Illinois. People v. Porter, - UK - , 123 N. E. 59.
Indiana. Schnell v. Nell, 17 Ind. 29, 79 Am. Dec 453.
Iowa. Meginnee v. McChesney, 179 la. 563, 160 N. W. 50 [sub nomine, Meginnes v. Copeland, L. R. A. 1917E, 1060]; Gooch v. Gooch, 178 la. 902, L. R. A. 1917C, 582, 160 N. W. 333.
Maine. Warren v. Whitney, 24 Me. 561. 41 Am. Dec. 406.
Maryland. Linz v. Schuck, 106 Md. 220, 124 Am. St. Rep. 481, 11 L. R. A. (N.S.) 789, 67 Atl. 286.
New Jersey. Freeman v. Robinson, 38 N. J. L. 383, 20 Am. Rep. 399.
Rhode Island. Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dec. 573.
Vermont. Cobb v. Cowdery, 40 Vt. 25, 94 Am. Dec. 370.
West Virginia. Gooch v. Gooch, 70 W. Va. 38, 73 S. E. 56 [sub nomine, Gooch v. Alien, 37 L. R. A. (N.S.) 930]. "A moral obligation does not suffice for a consideration unless the moral obligation was once a legal one." People v. Porter, - 111. - , 123 N. E. 69.
2 England. Eastwood v. Kenyan, 11 Ad. & El. 438 (promise by husband).
Alabama. Thompson v. Hudgins, 116 Ala. 93, 22 So. 632; Horton v. Hill, 136 Ala. 625, 36 So. 465.
California. Shaver v. Mining Co., 10 Cal. 396.
Illinois. Thompson v. Minnich, 227 111. 430, 81 N. E. 336.
Indiana. Maher v. Martin, 43 Ind. 314; Austin v. Davis, 128 Ind. 472, 25 Am. St. Rep. 450, 12 L. R. A. 120, 26 N. E. 890.
Kentucky. Holloway v. Rudy (Ky.), 60 S. W. 650 [sub nomine, Trimble v. Rudy, 53 L. R. A. 353]; Gilbert v. Brown (Ky.), 7 L. R. A. (N.S.) 1053, 97 S. W. 40, 29 Ky. Law Rep. 1248.
Maine. Howe v. Wildes, 34 Me. 566.
Maryland. Lyell v. Walbach, 113 Md. 574, 33 L. R. A. (N.S.) 741, 77 Atl. 1111.
Missouri. Musick v. Dodson, 76 Mo. 624, 43 Am. Rep. 780; Bragg v. Israeli, 86 Mo. App. 338.
North Carolina. Wilcox v. Arnold, 116 N. Car. 708, 21 S. E. 434.
South Carolina. Aultman v. Rush, 26 S. Car. 517, 2 S. E. 402.
Vermont. Hayward v. Barker, 52 Vt. 429, 36 Am. Rep. 762; Valentine v. Bell, 66 Vt. 280, 29 Atl. 261.
Contra, Lee v. Muggeridge, 5 Taunt. 36; Goulding v. Davidson, 26 N. Y. 604; Trout v. McDonald, 83 Pa. St. 144; Brown v. Bennett, 75 Pa. St. 420 [following the English rule, since abandoned, Lee v. Muggeridge, 5 Taunt. 36]. The endorser on a new note can not set up the coverture of the maker when the original note was given. Young's Estate, 234 Pa. St. 287, 83 Atl. 201.
3 Warren v. Whitney, 24 Me. 561, 41 Am. Dec. 406; Valentine v. Foster. 42 Mass. (1 Met.) 520, 35 Am. Dec. 377; Hale v. Rice, 124 Mass. 292; Mason v. Campbell, 27 Minn. 54, 6 N. W. 405; Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dec. 573.
Contra, Willing v. Peters, 12 Serg. & R. (Pa.) 177 (but Pennsylvania adheres in obiter at least to the old English rule).
4 Seeley v. Cox, 28 N. & 210.
unless by a conditional compromise where on breach of condition the original liability has revived.5 Since a promise by a debtor to pay one of the creditors more than the other creditors are to receive under a composition agreement is invalid,6 a subsequent promise by such debtor in renewal of the original promise has no consideration.7 If a note is given and at the same time the payee enters into a written contract not to sue the maker thereon, no moral obligation arises on such note, and a subsequent promise to pay it is unenforceable.8 A contract which has been abandoned by mutual consent of the parties thereto while it is executory, is not a consideration for a subsequent promise made by one of such parties.9 If a town has furnished support to A under a contract by which A agrees to convey certain property to such town, and A conveys such property, no consideration exists for A's promise to reimburse the town for such support, even though such contract proves unprofitable to the town.10
Other examples of a moral obligation insufficient as a consideration are a husband's promise to pay to his daughter money which he had received from his wife and which in law had become his own;11 a father's promise to his dying wife that their son should have certain property;12 a promise by a son to his mother to reimburse her for paying his expenses of college which were paid by her without any understanding at the time that her son would reimburse her therefor;13 a promise by a son to indemnify a constable in the sale of goods levied on as those of the promisor's father;14 a promise by a father to pay for the past support of his illegitimate child, at common law;15 a promise by a mother to pay for medical services which had been rendered to her daughter, who was of full age;16 services which had been rendered by one member of a family for another under circumstances which created no legal liability;17 services, care and attention rendered for the promisor, for which the promisee had been paid at the time under her contract of employment;18 a promise to indemnify against loss, due to promisor's mistaken, but honest advice in business, causing loss to the party following it.19 A consideration is held to exist where an agent feels bound to reimburse his principal for losses due to the purchase by the agent for the principal of forged notes which had been certified as genuine by a notary public,20 and payment of another's taxes by mistake.21 The moral duty of one spotise to pay the debt of the other, for which there is no legal liability, is not sufficient as a consideration to support the subsequent promise of such spouse to pay such debt.22 A paid for the college education of her son, B, without any contract for reimbursement. Subsequently B gave to A a note for such expenditures. Such note was held not to be supported by sufficient consideration.23
5 Zoebisch v. Von Minden, 120 N. T. 406, 24 N. E. 795.
6 See Sec. 874.
7 Wheeler v. Pettyjohn, 14 Okia, 71, 76 Pac. 117.
8 Monroe v. Martin, 137 Ga. 262, 73 S. E. 341.
9 Royer v. Kelly, 174 Cal. 70, 161 Pac. 1148.
10 Warren v. Weaver, - N. H. -, 97 Atl. 748.
11 Duttera v. Babylon, 83 Md. 536, 35 Atl. 64.
12 Peek v. Peek, 77 Cal. 108, 11 Am. St Rep. 244, 1 L. R. A. 185, 19 Pac. 227.
13Gooch v. Gooch, 70 W. Va. 38, 73 S. E. 56 [sub nomine, Gooch v. Allen, 37 L. R. A. (N.S.) 930].
14 Nixon v. Vanhise, 5 N. J. L. (2 South.) 491, 8 Am. Dec 618.
15 Easley v. Gordon, 51 Mo. App. 637. So, Mercer v. Mercer, 87 Ky. 30, 7 S. W. 401. Under a statute which imposes a Inability upon the father for the support of his illegitimate child, it has been said that such liability is a moral obligation on his part, and is a sufficient consideration even in the absence of statute. Trayer v. Setzer, 72 Neb. 845, 101 N. W. 989.