§ 577. Promises which are wholly gratuitous are void, for want of consideration; for, however obligatory they may be in morals or in honor, inasmuch as they are not founded upon an injury or deprivation to the promisee, or a benefit to the promisor, they are not regarded by the law as legal and valuable considerations.2 Thus, a mere promise to pay the debt of a friend is not legally obligatory, and will not support an action.8 So a promise to pay for past services is not bind-
1 Tweddle v. Atkinson, 1 B. & S. 393 (1861). Wightman, J., there said: " Some of the old decisions appear to support the proposition that a stranger to the consideration of a contract may maintain an action upon it, if he stands in such a near relationship to the party from whom the consideration proceeds, that he may be considered a party to the consideration. The strongest of those cases is that cited in Bourne v. Mason, 1 Vent. 6, in which it was held that the daughter of a physician might maintain assumpsit upon a promise to her father to give her a sum of money if he performed a certain cure. But there is no modern case in which the proposition has been supported. On the contrary, it is now established that no stranger to the consideration can take advantage of a contract, although made for his benefit." See also Neubrecht v. Santmeyer, 50 111. 74 (1869); Exchange Bank v. Rice. 107 Mass. 37 (1871). See ante, § 485.
2 Holliday v. Atkinson, 8 Dowl. & Ryl. 163; s. c. 5 B. & C. 501; Harris v. Watson, Peake, 72; Newman v. Walters, 3 Bos. & Pul. 612; Wilkinson v. Byers, 1 Ad. & El. 109; s. c. 3 Nev. & Man. 853; Mills v. Wyman, 3 Pick. 211; Thome v. Deas, 4 Johns. 84.
3 Reading Railroad v. Johnson, 7 Watts & Serg. 317. See James v. Williams, 5 B. & Ad. 1109. In some States a promise to pay the balance of a debt, which has been discharged by the creditor, by an accord and satisfaction, is not binding: Warren v. Whitney, 24 Me. 561; Phelps v. Dennett, ing, unless they were rendered with the knowledge or request of the defendant, express or implied.1 And a promissory note, given by a father to a son, in consideration of affection only, is void.2 So if a wife promises to pay a person for a barn which he had built on her land by the order and on the credit of her husband, acting for himself, and not as agent for her, it is invalid for want of consideration.3 So, also, some cases hold that subscriptions to public works and charities cannot be collected, if they be merely gratuitous, and have not operated to induce engagements and liabilities, within the knowledge of the subscriber.4 But where, on faith of a subscription, work has been performed, or liabilities assumed; as, for instance, where a building is erected or begun, an action may be maintained against any subscriber who refuses or neglects to pay his subscription.6 On an agreement of subscription to a certain medical particular person to a charity would not be obligatory, although it may have induced many subsequent subscriptions, because no injury is done to the other subscribers by a breach of payment by one. Yet if the subscribers had not agreed to pay a definite sum, but only their proportion in order to raise a particular sum for a specified object, and such sum had been thereto applied, so that a non-payment by one would extend the liability of the others, the promise of each could be enforced.1 But a subscription to pay T. the sums subscribed, to be
57 Me. 491; Stafford v. Bacon, 1 Hill, 532; in others the contrary is held. Trumball v. Tilton, 1 Fost. 129, reviewing the authorities.
1 Sanderson v. Brown, 57 Me. 313 (1869); Allen v. Woodward, 2 Fost. 544; Wilson v. Edmonds, 4 Fost. 517; Bartholomew v. Jackson, 20 Johns. 28.
2 Holliday v. Atkinson, 5 B. & C. 501; s. c. 8 Dowl. & Ryl. 163. See also Dodge v. Adams, 19 Pick. 429.
3 Morse v. Mason, 103 Mass. 560 (1870). And see Chamberlin v. Whitford, 102 Mass. 448 (1869).
4 Boutell v. Cowdin, 9 Mass. 254; Phillips Limerick Academy v. Davis, 11 Mass. 113; Bridgewater Academy v. Gilbert, 2 Pick. 579; Stewart v. Hamilton College, 2 Denio, 403, and 1 Comst. 581. See Troy Academy v. Nelson, 24 Vt. 189; Barnes v. Perine, 9 Barb. 202; Wilson v. Baptist Ed. Soc, 10 Barb. 309; Gait v. Swain, 9 Gratt. 633; Foxcroft Academy v. Favor, 4 Greenl. 382, and Bennett's note. It is now well settled that voluntary subscriptions for educational, charitable, or other similar objects, are valid and binding in law; and that the implied, if not expressed undertaking or duty of the promisee to faithfully appropriate the funds to the prescribed object is a sufficient consideration, if there were no other, for the promise of the subscriber. Ladies' Collegiate Institute v. French, 16 Gray, 196; Thompson v. Page, 1 Met. 565. The dicta to the contrary in some of the earlier Massachusetts cases are not now regarded as law. See Pitt v. Grutb, 49 Mo. 74 (1871), making a distinction between a public and purely private enterprise.
5 Robertson v. March, 3 Scam. 198. See also Sperry v. Johnson, 11 Ohio, 452; Caul v.Gibson, 3 Barr, 416; Sandforth v. Halsey, 2 Denio, 235: Watkins v. Eames, 9 Cush. 537. See ante, § 570; Trustees, etc. v. Gar institution "for the purpose of building a medical college for said institution," the last instalment to be paid "when the building shall be completed, the building to be such an one as is referred to in the plan and specification to be made by E. B.," no action lies for the last instalment, if the medical institution, after the payment of the other instalments, and after occupying the building for three years as a medical college, but before its completion, convey it to an institution for the education of females, who complete it according to said plan and specification, but occupy it for their own purposes.1 But there must be a privity of contract between the plaintiffs who seek to enforce such subscription, and the defendant.2 And ordinarily it is only to his cosigners that a person is liable for his subscription. Yet if the subscribers call a meeting, and appoint a committee to carry out the object of the subscription, each subscriber having notice of such meeting and taking part in it or assenting to its action would be responsible to such committee for his subscribed share.3 But if he had no notice of such meeting, he would not be liable.4 So, also, similar vey, 53 111. 401 (1870); McClure v. Wilson, 43 111. 356; but not going quite as far as George v. Harris, 4 N. H. 535; Johnston v. Wabash College, 2 Carter, 555; Lathrop v. Knapp, 27 Wis. 214 (1870).