§ 594. A consideration, in regard to the time when it operates, is either, 1st. Executed, or something already performed before the making of the defendant's promise; 2d. Executory, or something to be done after the promise; 3d. Concurrent, as in the case of mutual promises; or, 4th. Continuing.
§ 595. These last classes, namely, Executory, Concurrent, and Continuing Considerations, are sufficient to support a contract, not void from other reasons; but it has been said that an executed consideration will not support a promise, unless it be executed at the request of the promisor.1 This, however, is not a principle of law, but a rule of pleading, and amounts to nothing more than an affirmation that in assumpsit upon a contract, founded .upon a consideration which is executed or past, the declaration must allege that the consideration was executed at the request of the promisor, or otherwise it will not appear that it was not officious, and without his consent or knowledge.
1 Loyd v. Lee, 1 Str. 94; Watkins v. Halstead, 2 Sandf. 311. But see Vance v. Wells, 8 Ala. 399.
2 Ante, § 76; Keane v. Boycott, 2 H. Bl. 511; Tucker v. Moreland, 10 Peters, 59.
3 Littlefield v. Shee, 2 B. & Ad. 811; Meyer v. Haworth, 8 Ad. & El. 467. Qusere, whether this would be so if the husband was not bound, as in case personal credit was given to a wife who had a separate fortune ? Lee v. Muggeridge, 5 Taunt. 36.
§ 596. The difficulty in which this subject is involved, and the apparent injustice and absurdity of some of the decisions, arise chiefly from a want of discrimination between the law and the pleadings. The decision of the court in many of the cases, which apparently affirms the principle of law, was by no means a decision upon the merits of the case, but merely upon a question of pleading; and its seeming absurdity is the result of a defective declaration. Thus, in the case of Hunt v. Bate,2 which was the authority upon which many of the earlier cases were decided, the declaration averred that the defendant promised to save the plaintiff harmless, in consideration that he had become bail for the defendant's servant, and judgment was arrested, in consequence of the defect in the pleadings. On the next page, however, of the same book, an anonymous case is reported, in which a promise to. pay £20, "in consideration that the plaintiff, at the special instance of the defendant, had taken to wife the cousin of the defendant," was enforced at law, although the marriage was executed and past before the undertaking and promise. So, also, an affidavit of debt for money lent and work and labor done, was held to be insufficient, because it did not state that it was "at the instance and request of defendant." The court said: 1 "Money paid to and for the use of the defendant does not necessarily raise a cause of action; because a man cannot, of his own will, pay another man's debt without his consent, and thereby convert himself into a creditor. So the goods may, consistently with this affidavit, have been sold and delivered to a third person for the defendant's use, without his being acquainted with the transaction; and if so, he cannot be charged with them. An affidavit which is to operate in restraint of the liberty of a party, ought to use unequivocal language." So, also, where the declaration alleged that the defendant promised to pay the plaintiff £5, in consideration that the plaintiff had delivered him twenty sheep, it was held that, as the declaration alleged a past consideration, it was not sufficient; for it did not appear that the sheep were not delivered as a gift, in which case there would have been no foundation for a promise to pay therefor.2 It is impossible to suppose that this decision could be on the merits of the case, since, if the delivery were a mere bailment, the promise would have turned it into a sale. Again, where the declaration stated a promise to repay money which had been lent, it was held to be insufficient "for this cause only, that the moneys in the last promise were not said to be lent at the defendant's request, for it may be lent to his use contrary to his desire."3 It is one of the elementary principles of pleading, in the action of assumpsit, that a valid consideration should be alleged as a foundation for the promise which the plaintiff would enforce, whether the consideration would, as a matter of fact, be implied or not. That consideration is the request of the plaintiff; and though it might be inferred as a fact by the jury, or by the law, yet an omission to state it in the declaration would, in special pleading, be a fatal defect, preventing a decision upon the merits, yet carrying to the mind of a careless reader the full effect of such a decision. This rule will explain many, if not all, of the old cases, and seems only to be founded in justice; for, unless a request be stated, it does not necessarily appear on the face of a declaration that the service rendered was beneficial, or was not gratuitous, and perhaps obtrusive; and in either of these alternatives there is no ground for the claim of the plaintiff, without an express request. But if the promise be "coupled to the consideration by the request," it becomes more than a naked promise. The result may be stated, therefore, to be, that where the consideration is past, the declaration should state that it was executed at the request of the party sought to be charged, and then, if there be no vital objection on the merits, the party may recover.1
1 Osborne v. Rogers, 1 Saund. 264, Williams's note, 1; Dock and Student, 181; 1 Roll. Abr. 11; Bac. Abr. Assumpsit, D.; Lampleigh v. Brathwait, Hob. 105 b; s. c. 1 Smith, Leading Cases, 67, and the learned note of the editor, p. 69 to 76, 2d ed.; 1 Powell on Cont. 348; 22 Am. Jur. 1; 1 Lill. Abr. 299; Child v. Morley, 8 T. R. 610; Stokes v. Lewis, 1 T. R. 20; Naish v. Tatlock, 2 H. Bl. 319; Richardson v. Hall, 1 Br. & B. 50; Burn-ford v. Messiter, 5 M. & S. 446; 1 Dane, Abr. 119; 1 Selw. N. P. 48, 1st ed.; Hayes v. Warren, 2 Str. 933. If the consideration be executory, it is not perhaps absolutely indispensable to state it to be at the request of the promisor, for ex necessitate it seems implied. See Fisher v. Pyne, 1 Man. & Grang. 265, and the reporter's note 6/1 Smith, Leading Cases, 66 to 68, and the learned note of the editor, p, 69 to 76, 2d ed. But see Com. Dig. Pleader, C. 70; Tripps v. Rand, 2 Lev. 198. If services be rendered under a contract with a third person, not the servant or agent of the defendant, though for the defendant's benefit, the defendant will not be liable without a promise. Indianapolis Railway Co. v. O'Reilly, 38 Ind. 140 (1871).