1 Besford v. Saunders, 2 H. Bl. 116; Maxim v. Morse, 8 Mass. 127; Scouton v. Eislord, 7 Johns. 36; Erwin v. Saunders, 1 Cow. 249; Shippey v. Henderson, 14 Johns. 178; Willing v. Peters, 12 S. & R. 177; Stafford v. Bacon, 25 Wend. 384; s. c. 2 Hill, 353.
2 Barnes v. Hedley, 2 Taunt. 184; ante, § 116, 117, and cases cited.
§ 592. There is also an exception to the rule that a moral consideration is not sufficient to support a promise, which is admitted in the case of gratuitous bailees or trustees holding the goods or property of another. In such case, the law raises an implied promise, on the part of the trustee, to do all those acts which are requisite to a due performance of the trust, although it implies no agreement that he shall receive a compensation therefor. Yet, where his promise is purely voluntary, and founded upon motives of friendship or kindness, he would only be bound to exercise good faith and reasonable diligence in executing the trust, and would be responsible only for gross negligence.3 So, also, a gratuitous bailee of goods is bound to exercise a like degree of diligence,.and will be responsible for a similar degree of negligence.4
1 Hopes v. Alder, 6 East, 16, note; Lundie v. Robertson, 7 East, 231, and note; Haddock v. Bury cited in 7 East, 236. The case of Watson v. Turner, Buller, N. P. 130, 281, would seem to settle a different doctrine. This was an action against the overseers of a parish for supplies furnished to a pauper, settled in the parish and boarding out of it, under an agreement made by the overseers and the plaintiff, and a subsequent promise made by them after the supplies were furnished to pay the bill; the agreement was enforced upon the ground, "that overseers are under moral obligations to support the poor." The true reason, however, seems to be, that they were legally bound to supply paupers casually in the parish, and paupers settled there, but resident elsewhere, and under their charge. Simmons v. Wilmott, 3 Esp. 91; Lamb v. Bunce, 4 M. & S. 275; 21 Am. Jur. 258; Wing v. Mill, IB. & Al. 104. There was, also, a legal liability in the case of Suffield v. Bruce, 2 Stark. 175. See Lee v. Muggeridge, 5 Taunt. 36, in which it was held, that a moral obligation is a sufficient consideration to support a subsequent promise. This doctrine is, however, abridged and modified in Littlefield v. Shee, 2 B. & Ad. 811; and denied in the case of Eastwood v. Kenyon, 11 Ad. & El. 438, Denman, C. J. See also Wennall v. Adney, 3 Bos. & Pal. 247, 249, note. But see Greeves v. McAllister, 2 Binn. 591; Doty v. Wilson, 14 Johns. 381, which recognize the doctrine of the sufficiency of a moral consideration to support an express promise. The modern cases have, however, established the doctrine as stated in the text. See Mills v. Wyman, 3 Pick. 211, cited supra; Monkman v. Shepherdson, 11 Ad. & El. 415; Beaumont v. Reeve, 8 Q. B. 483; Jennings v. Brown, 9 M. & W. 501.
2 Melchoir v. McCarty, 31 Wis. 252 (1872). But see Pope v. Linn, 50 Me. 83 (1863).
3 2 Story Eq. Jur. § 1268. 4 Story on Bailm. § 173, 174.
§ 593. The ground upon which these exceptions are founded, is, that these contracts being merely voidable and not void, in their inception, they may be revived by a subsequent promise, provided they were originally founded upon an express or implied request by the party benefited. But, where the promise is void, ab initio, it is not capable of ratification. Thus, where a married woman gave a promissory note, and after her husband's death, promised, in consideration of the forbearance of the payee, to pay it, it was held, that the note was absolutely void, and that forbearance, where there was no cause of action originally, is not a sufficient consideration to raise a promise.1 So, also, a bare promise by an adult to pay a bond given by him as surety during his infancy would not be on sufficient consideration, because the bond was void, and what is void in its inception cannot be made good by a ratification.2 So, also, where certain goods were supplied to a feme covert, living apart from her husband, and for which she, after his death, promised to pay, it was held, that the subsequent promise was void, because, the goods being supplied to her during the life of her husband, the price constituted a debt due from him,3 and not from her.