§ 590. A moral obligation alone is not a sufficient legal consideration to support either an express3 or implied promise; for the law, although it will not suffer any immorality, cannot undertake to enforce every promise which a man of strict honor and integrity would feel himself bound to fulfil. The performance, therefore, of many purely moral obligations must be left to the good faith of the individual; and it is neither within the province nor the policy of the law to apply a metaphysical standard of morality to the conduct of men in their common relations of life.4 Thus, where one gave a deed of. land, described as being "supposed to contain ninety-three acres," and upon admeasurement, it being found to be far smaller, the vendee promised to pay back a proportional part of the price, it was held, that as the terms of the contract indicated a willingness by both parties to take the risk of any mistake which there might be in the quantity, the promise was a mere nudum pactum.5 So, also, where a son who was of age was suddenly taken sick among strangers, and was relieved by the plaintiff, and thereupon the father wrote to the plaintiff promising to pay the expenses incurred, the promise was not • considered sufficient to sustain an action, inasmuch as the father was not liable for the son's debts after he came of age.1 So, also, a promise by a son to pay for necessaries furnished to
1 Smith v. Morris, 2 Bro. C. C. 314.
2 Prebble v. Boghurst, 1 Swanst. 309.
3 But see Musser v. Ferguson, 55 Penn. St. 475 (1867).
4 See Eastwood v. Kenyon, 11 Ad. & El. 438; Geer v. Archer, 2 Barb. 424; Kaye v. Dutton, 7 Man. & Grang. 807; Jennings v. Brown, 9M.&W. 501; Littlefield v. Shee, 2 B. & Ad. 811; Beaumont v. Reeve, 8 Q. B. 483. But see Kendall v. Kendall, 7 Greenl. 171.
5 Smith v. Ware, 13 Johns. 259.
1 Mills v. Wyraan, 3 Pick. 207. In this case Chief Justice Parker clearly lays down the whole doctrine relating to moral consideration as follows: "General rules of law established for the protection and security of honest and fair-minded men, who may inconsiderately make promises without any equivalent, will sometimes screen men of a different character from engagements which they are bound inforo conscientios to perform. This is a defect inherent in all human systems of legislation. The rule that a mere verbal promise, without any consideration, cannot be enforced by action, is universal in its application, and cannot be departed from to suit particular cases, in which a refusal to perform such a promise may be disgraceful.
"The promise declared on in this case appears to have been made without any legal consideration. The kindness and services towards the sick son of the defendant were not bestowed at his request. The son was in no respect under the care of the defendant. He was twenty-five years old, and had long left his father's family. On his return from a foreign country, he fell sick among strangers, and the plaintiff acted the part of the good Samaritan, giving him shelter and comfort until he died. The defendant, his father, on being informed of this event, influenced by a transient feeling of gratitude, promises in writing to pay the plaintiff for the expenses he had incurred. But he has determined to break this promise, and is willing to have his case appear on record as a strong example of particular injustice sometimes necessarily resulting from the operation of general rules.
"It is said a moral obligation is a sufficient consideration to support an express promise; and some authorities lay down the rule thus broadly; but upon examination of the cases we are satisfied that the universality of the rule cannot be supported, and that there must have been some pre-existing obligation, which has become inoperative by positive law, to form a basis for an effective promise. The cases of debts barred by the statute of limitations, of debts incurred by infants, of debts of bankrupts, are generally put for illustration of the rule. Express promises founded on such pre-existing equitable obligations may be enforced; there is a good consideration for them; they merely remove an impediment created by law to the recovery of debts honestly due, but which public policy protects the debtors from being compelled to pay. In all these cases there was originally a quid pro quo; and according to the principles of natural justice, the party receiving ought to pay; but the legislature has said he shall not be coerced; then comes the promise to pay the debt that is barred, the promise of the man to pay the debt of the infant, of the discharged bankrupt to restore to his creditor what by the law he had lost. In all these cases there is a moral obligation, founded upon an antecedent valuable consideration. These promises, therefore, have a sound legal basis. They are not promises to pay something for nothing; not naked pacts; but the voluntary revival or creation of obligation which before existed in natural law, but which had been dispensed with, not for the benefit of the party obliged solely, but a father, was held to be void for want of consideration.1 The promise of a partner selling out to his copartner to make up principally for the public convenience. If moral obligation, in its fullest sense, is a good substratum for an express promise, it is not easy to perceive why it is not equally good to support an implied promise. What a man ought to do, generally he ought to be made to do, whether he promise or refuse. But the law of society has left most of such obligations to the interior forum, as the tribunal of conscience has been aptly called. Is there not a moral obligation upon every son who has become affluent by means of the education and advantages bestowed upon him by his father, to relieve that father from pecuniary embarrassment, to promote his comfort and happiness, and even to share with him his riches, if thereby he will be made happy ? And yet such a son may, with impunity, leave such a father in any degree of penury above that which will expose the community in which he dwells to the danger of being obliged to preserve him from absolute want. Is not a wealthy father under strong moral obligation to advance the interest of an obedient, well-disposed son, to furnish him with the means of acquiring and maintaining a becoming rank in life, to rescue him from the horrors of debt incurred by misfortune? Yet the law will uphold him in any degree of parsimony, short of that which would reduce his son to the necessity of seeking public charity.