It has been sometimes said that a continuing consideration is sufficient to support a promise, as where one should promise in consideration of what the other party had done and might thereafter do. But, in reality, it is the executory part of the consideration which is alone valuable, and is sufficient to support the whole promise; and such, upon examination, will, it is believed, be found to be the true ground of decision of the cases: Pearl v. Unge, Cro. Eliz. 94; Brett v. J. S., Cro. Eliz. 735; Colton v. Westcott, 1 Rolle, 381; Loomis v. Newhall, 15 Pick. 159; Andrews v. Ives, 3 Conn. 368.-R.
Mutual promises constitute a sufficient consideration for the support of a contract: Forney v. Shipp, 4 Jones, 527; Nott v. Johnson, 7 Ohio St. 270; Leach v. Keech, 7 Clarke, 232; Aldrich v. Lyman, 6 R. I. 98; Funk v. Hough, 29 111. 145; Briggs v. Sizer, 30 N. Y. 647; Downey v. Hinchman, 25 Ind. 453; Boies v. Vincent, 24 Iowa, 387; Messesquor v. Sabin, 48 Vt. 239. And see as to subscriptions: Underwood v. Waldson, 12 Mich. 73; Van Rensselear v. Aiken, 44 Barb. 547; Pitt v. Gentle, 49 Mo. 74; Cooper v. M'Crimmin, 33 Tex. 383; Lathrop v. Knapp, 27 Wis. 214.-s.
(u) 1 Smith, L. C. 155, note, 8th ed.
(x) Dyer, 272; Pourtales Gorgier v. Morris, 29 L. J. (C. P.) 208.
1A very good illustration of this principle may be found in the case of Dearborn v. Bowman, 3 Metc. 155, where the plaintiff had in a political campaign rendered services in the circulation of pamphlets to aid the election of the defendant, who had subsequently promised to pay him therefor, and the Court, in holding the promise to be destitute of consideration, said, " Such services impose no obligation, legal or moral, on the defendant, and it would be somewhat dangerous to hold that they created any honorary obligation on him to pay for them. Nor would it be aided in a legal view by a previous custom, if proved, for candidates to contribute to the payment of similar expenses, whether successful or otherwise in the election. Nor were these services performed at the request of the defendant. On the contrary, it appeared by the evidence that they were performed by the chairman of the distinction clearly explained in *Lampleigh v.
These two cases clearly illustrate the distinction between an executed consideration moved by a previous request, which will support a promise, and an executed consideration not moved by a previous request which will not support a promise.1 You will find the same county committee, who alone was reponsible for the payment, and between whom and the defendant there was no privity, nor even any communication, until long after the services had been performed. The rule of law seems to be now well settled, though it may have been formerly left in doubt, that the past performance of service constitutes no consideration even for an express promise, unless they were performed at the express or implied request of the defendant, or unless they were done in performance of some duty or obligation resting on the defendant: Mills v. Wyman, 3 Pick. 207; Loomis v. New-hall, 15 lb. 159; Dodge v. Adams, 19 lb. 429. As the services performed by the plaintiff were not done at the request of the defendant, as they were not done in the fulfilment of any duty or obligation resting on him, there was no consideration to convert the express promise of the defendant into a legal obligation." To the same point are Snevily v. Read, 9 Watts, 396; Geer v. Archer, 2 Barb. 420; Hudson v. Overtuff, 2 111. 170; Kinnerly v. Martin, 8 Mo. 698; Beaumont v. Reeve, 8 Q. B. (55 E. C. L. R.) 483.-r.
1 This statement should be somewhat qualified. It has already been pointed out that a consideration is some detriment suffered by the promisee in reliance upon the promise of the promisor. Now if the consideration be executed (that is, past) at the time the promise is made, it is obvious that the promisee did not afford this consideration upon the faith of the promise, for he could not know that such a promise would ever be made, and it is equally obvious that the promisor received nothing in return for his promise, either when he made it or at any other time-that which he received from the promisee he had already obtained, and in regard to it his position would never be altered if he never made any promise at all.
Is the case altered if the consideration moved at the request of the promisor? If I request some one to perform some service for me, in no way implying that I expect to compensate him for it, and he does it, and I subsequently thank him for the service rendered and promise that because of it I will do something for him, will this promise bind me? If the language quoted from Lampleigh v. Braithwaite be a correct statement of the law, it will, and I shall be held to the performance of a promise in return for which I received nothing, and which was entirely voluntary on my part. But upon this point Lampleigh v. Braithwaite and similar cases must be regarded as overruled: Langdell, Cases on Contracts, ii, 1035 et seq. An obligation sometimes arises from a past transaction, but this is where the obligation is imposed by the law, and although it is known as an implied contract, the agreement of the parties has nothing to do with its binding force: infra, pp. *197 et seq. Accordingly it is held that when the law implies a promise from such a transaction -such an executed consideration, as it is called-no different promise, no matter how clearly expressed, can be enforced: infra, p. *206.
Braithwaite (y), where the Court said, "a mere voluntary courtesy will not have a consideration to uphold an assumpsit. But if that courtesy were moved by a suit or request of the party who gives the assumpsit, it will bind; for the promise, though it follows, yet it is not naked, but couples itself with the suit before, and the merits of the party procured by that suit, which is the difference." In a modern case this principle was applied where the question was, as to whether there had been any consideration given for a Promissory Note. A., the plaintiff, having performed gratuitously services for B., received from him a promissory note, with an understanding that he should not only accept it as a gift for what was past, but that it should be a remuneration for future services to be rendered as long as B. should require them. A. continued to perform the services until B.'s death, when he sued B.'s executor's upon the note. It was held, that in order to make the future services a good consideration for giving the note, it was incumbent on the plaintiff to show that there was some contact binding him to perform future services which might have been enforced by the giver of the note, and that a mere understanding was not a suffi(y) Hob. 105. See judgment in Eastwood v. Kenyon, 11 A. & E. (39 E. C. L. R.) 438.