The modern rule appears to be that where the obligation is created by the law it makes no difference whether the party bound requested the performance of the so-called consideration or not. In other cases where the party is bound because of his previous request, it would seem to be because the request was in such terms as to imply compensation for the services rendered, and here the action rests upon the promise implied in the request at the time of the services rendered, and is independent of any subsequent express promise on his part.
See Turner v. Partridge, 3 P. & W. 172; Kenan v. Holloway, 16 Ala. 53; Ayers v. Chicago, etc, R. R., 52 Iowa, 478; Langdell, Summary of the Law of Contracts,§§ 90-98; Wharton on Contracts, \ 514.
Cient consideration, there being nothing to show that the plaintiff might not, the *moment the note was given, have refused to give his services (z).1
But here arises another distinction, and it is the last to which I shall refer upon this subject; but this is a distinction to which it is absolutely necessary to refer, in order that you may not be misled by what I have already stated. There being the rule I have just stated regarding executed considerations, namely, that an executed consideration must have arisen from a previous request by the person promising, in order that it may be sufficient to support the promise, there are certain classes of cases in which this previous request is implied, and need not be expressly proved by the person to whom the promise is given. Now the cases in which a previous request is implied are as follows.
First, the case which I have already stated, in which one man is compelled to do that which another ought to have done, and was compellable to do. In this case the consideration is an executed one, for the thing must have been done before any promise can be made to reimburse the person who has done it; but though the consideration is executed the law implies the request. And therefore in this case an action may be brought for indemnity without proving any express request on the part of the *defendant (a). In addition to the examples already given, the case of Exall v. Partridge (b) is well calculated to set this matter in a clear light. There the defendant was tenant of certain premises, and under covenant to pay rent to the landlord for them. Having neglected to pay the rent, the goods of a stranger to the contract between the landlord and tenant, which were upon the premises of the latter, were distrained by the landlord for the rent in arrear, and it was held that the stranger might sue the tenant for the money which he had paid in order to redeem his goods; although it is obvious, from the state of the facts, that no request that he should do so had in fact been made by the tenant. In Grissell v. Robinson (c), the plaintiff had contracted to grant the defendant a lease; the lease was prepared by their solicitor and executed. It is the general *practice for the lessor's solicitor to prepare the lease, and for the lessee to pay the solicitor; the lessee having refused so to do, the lessors paid him, as they might have been compelled to do; and the Court decided that an action was maintainable by them for money paid at the lessee's request.
(2) Hulse v. Hulse, 17 C. B. (84 E. C. L. R.) 711; 25 L. J. (C. P.) 177. (a) See judgment of Queen's Bench in Batard v. Hawes, 22 L. J. (Q. B.) 443; 2 E. & B. (75 E. C L. R.) 287.
(b) 8 T. R. 308. See also Johnson v. Royal Mail Steam Packet Co., L. R.
1 The student who seeks for a more extended analysis of this subject than can be afforded in these elementary lectures, may most profitably refer to the note to Lampleigh v. Brathwaite, 1 Smith's L. C. 268, 8th Am. Ed., and that to Vadakin v. Soper, 1 Am. L. C. 120.-R.
I must further observe upon this class of cases, and also upon the next, that, not only is the request implied, but the promise also; for, if, to put an example, A. is indebted to B. in a certain sum of money, and C. is his surety; if C. be compelled to pay, not only is a request by A. to do so implied by law, but a promise by him to indemnify C. is also implied. And, in an action brought by C. to enforce the indemnity, he need prove no express promise, no express request, but simply that A. was indebted to B., and that he, C, as A.'s surety, was compelled to pay that debt (d). For an example of this, you may take the common case of an accommodation acceptor or endorser, who, as soon as he has been obliged to pay the money, may maintain an action against the person for whose accommodation he accepted or endorsed (e).1
3 C. P. 38; 37 L. J. (C. P.) 33. In Exall v. Partridge, the goods distrained on were on the premises at the request of the tenant. When a stranger leaves his goods on the premises without any request, express or implied, of the tenant, and the stranger's goods are distrained, he cannot recover what he pays to release them from the tenant, as for money paid: England v. Marsden, L.
R. 1 C. P. 529; 35 L. J. (C. P.) 259
(c) 3 Bing. N. C. (32 E. C. L. R.) 10; Webh v. Rhodes, 3 Bing. N. C. (32 E.
C. L. R.) 732; Moon v. Guardians of Witney Union, 3 Bing. N. C. (32 E. C. L. R.) 814; Wilkinson v. Grant, 25 L. J. (G. P.) 233; 18 C. B. (86 E. C. L. R.) 519; Smith v. Clegg, 27 L. J. (Ex.) 300.
Secondly, where the person who is sought to be charged adopts and takes advantage of the benefit *of the consideration. Suppose, for instance, A. purchases goods for B. without his sanction, B. may, if he think fit, repudiate the whole transaction; but if, instead of doing so, he receive the goods and take possession of them, the law will imply a request from him to A. to purchase them, and will also imply a promise by him to repay A., and he will be liable in an action for money paid to his use, founded on that implied promise (f). The cases where goods have been supplied to children without the knowledge or express request of the father, are illustrations of this rule. Even where the goods supplied are necessaries, some recognition amounting to adoption is requisite, in order to render the father liable, and to support the implied request and promise; in such case it has often been considered sufficient that the father should have seen them worn by the child without objection (g). See 1 Wms. Saund. 264, note 1, where you may, if you please, find a great deal of valuable information upon the whole subject of which I am now treating.1 It is obvious that the same rule will apply where one man does work for another without his request, as when he purchases or supplies goods for him. But suppose such a case as this: I do valuable work on your property without your *knowledge, have I a claim on you for payment ? "How can you help it? One cleans another's shoes, what can the other do but put them on? Is that evidence of a contract to pay for the cleaning ? The benefit of the service could not be rejected without refusing the property itself." Adoption, and taking advantage of the benefit of the consideration may be such recognition or acceptance of services as may be sufficient to show an implied contract to pay for them, if, at the time, the defendant had power to accept or refuse it.