2 Dyer, 272 a.
1 Durnford v. Messiter, 5 M. & S. 445.
2 Jeremy v. Goochman, Cro. Eliz. 442.
3 Oliverson v. Wood, 3 Lev. 366. See also Hayes v. Warren, 2 Bar-nardiston, 141; 8. c. 2 Str. 933; Comstock v. Smith, 7 Johns. 87; Parker v. Crane, 6 Wend. 649; Leland v. Douglass, 1 Wend. 492; Balcom v. Craggin, 5 Pick. 295; Stanhop's Case, Clayton, 65; Hunt v. Bate, Dyer, 272.
§ 597. The next question which arises, is as to the necessity of actually proving the previous request of the promisor. And in this respect the rule seems to be, that if the consideration be one which does not raise an implied promise in law, the previous request must be actually proved, as well as declared.2 If it be proved, it matters not whether the execution of it have or have not actually turned out to be beneficial to the promisor.1 § 598. In what cases, then, is a promise implied by law, so as to render it unnecessary to prove such request ? In the first place, a promise is implied whenever the consideration is beneficial to the party subject to be charged, and is actually adopted or taken advantage of by him.2 For, in such a case, the person executing the consideration becomes the accredited agent of the promisor, by the fact that the latter adopts his act; according to the maxim, Omnis ratihabitio retrotrahitur et mandate equiparatur. If, however, the person sought to be charged refuse to adopt or take advantage of the consideration, when performed, a promise on his part would not be implied, since he is not bound to indemnify persons for acts done without his consent or wish, however beneficial such acts may be, unless he takes advantage of them, and refuses to ratify them.1 Examples of this rule are to be found in cases where a husband permits his wife to receive goods which he did not authorize her to buy, and for which he knows his own credit has been pledged; and to cases where an infant retains a lease after he arrives at full age, without objecting.2 So, also, where A. purchases goods for B., and B. receives them and uses them without objection, knowing that they are not a gift, a promise would be implied on his part to pay for them; and no previous request need be proved.3
1 1 Saund. 264, Williams's note, 1; 3 Salk. 96; 1 Powell on Cont. 351, 352 (edit. 1790); Sydenham v. Worlington, Godb. 31; s. c. Cro. Eliz. 42;
2 Leon. 224; Hardres v. Prowd, Style, 465; Lampleigh v. Braithwait, 1 Brownl. 7; s. c. Moore, 866; Hob. 105; Bosden v. Thinn, Cro. Jae. 18; s. c. Yelv. 40; Townsend v. Hunt, Cro. Car. 408; Comstock v. Smith, 7 Johns. 87; Livingston v. Rogers, 1 Caines, 584. See Bulkley v. Landon.
3 Conn. 76; 1 Powell on Cont. 351, 352 (edit. 1790); 1 Fonbl. Eq. B. 1, ch. 5, § 8, note a, 5th ed.; Com. Dig. Action on the Case, Assumpsit (B. 12); Seago v. Deane, 4 Bing. 459; Pawle v. Gunn, 4 Bing. N. C. 448; 1 Smith, Lead. Cas. 66, and the learned note of the editor, p. 69 to 76, 2d ed.; Mills v. Wyman, 3 Pick. 207; Bell v. Morrison, 1 Peters, 373; Lonsdale v. Brown.
4 Wash. C. C. 148; Cook v. Bradley, 7 Conn. 57; Exeter Bank v. Sullivan, 6 N. H. 136; Levy v. Cadet, 17 S. & R. 126; Searight v. Craighead, 1 Penn. 135. A promise made upon a past consideration is binding, even without request, if the consideration moves directly from the promisee to the promisor, and inures to the latter1 s benefit. Boothe v. Fitzpatrick, 36 Vt. 681 (1864).
2 Kaye v. Dutton, 7 Man. & Grang. 807; Victors V. Davies, 12 M. & W. 758. See also Mr. Sergeant Manning's note to Fisher v. Pyne, 1 Man. & Grang. 265; Hopkins v. Logan, 5 M. & W. 241.
1 Ibid.; Kaye v. Dutton, 7 Man. & Grang. 807.
2 1 Fonbl. Eq. B. 1, ch. 5, § 1, note a, 5th ed.; 1 Saund. 264, Williams's note; Oatfield v. Waring, 14 Johns. 192; Hicks v. Burhans, 10 Johns. 243; Doty v. Wilson, 14 Johns. 378; Lonsdale v. Brown, 4 Wash. C. C. 148; Mills v. Wyman, 3 Pick. 207; Cook v. Bradley, 7 Conn. 57; Exeter Bank v. Sullivan, 6 N. H. 136; Bell v. Morrison, 1 Peters, 371; Levy v. Cadet, 17 S. & R. 126; Searight v. Craighead, 1 Penn. 135; Lawes, PI. in Assumpsit, 435; Greeves v. M1Allister, 2 Binn. 592; Pillans v. Van Mierop, 3 Burr. 1671; Fisher v. Pyne, 1 Man. & Grang. 265, note b; 1 Smith, Lead. Cas. 67, 68, and the editor's learned note, p. 69 to 76, 2d ed. In cases of indebitatus assumpsit for goods sold and delivered, or for labor and services performed, or for money lent, it is the common practice to declare that the goods were sold and delivered, or the labor and services were performed, or the money lent, at the request of the defendant; and this allegation has usually been considered necessary. But the learned reporters, in note b to the case of Fisher v. Pyne, 1 Man. & Grang. 265, have expressed a decided opinion that it is not necessary, and that the existence of the debt, as a debt, is sufficient to found the right of action, whether it originally came from either the plaintiff or defendant. They insist that the note of Sergeant Williams to Osborne v. Rogers, 1 Saund. 264, which countenances the suggestion that a request must be alleged, is founded upon a mistake of that case, which was one of an executory contract, where it was said that no such precedent request need be stated. See Com. Dig. Pleader (C. 70). Indeed, it would seem, from the note to Fisher v. Pyne, that even if the consideration were past, it would be unnecessary to allege a request, if the act stated in the consideration cannot, from its nature, have been a gratuitous kindness, but imports a consideration per se, it being immaterial to the right of action whether the bargain, if actually concluded and executed, or the loan, if made and the money actually advanced, was proposed and urged by one party or the other. See also Mountford v. Horton, 2 Bos. & Pul. N. R. 62. But see Hayter v. Moat, 2 M. & W. 56. See Victors v. Davies, 12 M. & W. 758, in which it is decided that no request need be averred.
§ 599. In the next place, where one man is compelled to pay money which another is bound by law to pay, a promise by the latter is raised by law to reimburse the person paying.4 But in these cases the plaintiff must prove that the payment was made by compulsion of law, for the benefit of the defendant; or, in other words, that it was a case where the party to whom the money was paid had a legal claim for the payment, although he was not the party justly liable therefor. To do this, he must show such a contract as the law will enforce.6 Thus, for example, where there are cosureties, any one of them who is compelled to pay may recover of his cosureties their proportion.6