(n) Jennings v. Brown, 9 M. & W. 501.
(o) Kaye v. Dutton, 7 M. & Gr. (49 E. C. L. E.) 807.
(p) 11 A. & E. (39 E. C. L. E.) 438, 447; Deacon v. Gridley, 24 L. J. (C. P.) 17; 15 C. B. (80 E. C. L. E.) 295.
(q) See also Flight v. Reed, 1 H. & C. 703, 32 L. J. (Ex.) 265, for an illustration of this rule.
1 In some of the earlier American cases, there were many dicta and a few decisions in favour of a moral consideration being sufficient to support a promise: Greeves v. McAllister, 2 Binn. 591; Willing v. Peters, 12 S. & R. 177; Doty v. Wilson, 14 Johns. 378; but these cases, like the English decisions in Lee v. Muggeridge, and Wing v. Mill, 1 B. & Ald. 104, were subsequently expressly overruled by Snevily v. Read, 9 Watts, 396; Kennedy v. Ware, 1 Pa. St. 445; Mills v. Wyman, 3 Pick. 207; Beaumont v. Reeve, 8 Q. B. (55 E. C. L. R.) 483; Cook v. Bradley, 7 Conn. 57; Loomis v. Newhall, 15 Pick. 159; Dodge v. Adams, 19 lb. 429; Kinnerly v. Morton, 8 Mo. 698; Kenan v. Holloway, 16 Ala. 58; and such a doctrine may, perhaps, be now fairly considered as having no established place in the jurisprudence of either country.-r.
See Ellicott v. Peterson, 4 Md. 476; Womack v. Womack, 8 Tex. 397; Turner v. Chrisman, 20 Ohio, 332; M'Farland v. Mathis, 10 Ark. 560; Nash. v. Russell, 5 Barb. 556; Watkins v. Halstead, 2 Sand. 311; Geer v. Archer, 2 Barb. 420; M'Kinley v. O'Keson, 5 Pa. St. 369. There would appear, howtrated by the case of a debt barred by the Statute of Limitations, a promise to pay which, if duly made, ever, to be authority for an important exception to the general principle that a moral obligation is not a sufficient consideration. Wherever an actual benefit has been enjoyed from the unsolicited services of another, it is a sufficient foundation for an express promise, although no promise will be implied. Thus, an uncompleted contract on a railroad was assigned by the contractor for the benefit of creditors. There was in the hands of the railroad company a fund consisting of retained percentage, the assignor's right to which depended upon the completion of the contract. The assignor made a contract with the plaintiff that he should complete the contract at his own expense, and receive a certain compensation. The creditors, for whose benefit the assignment had been made, drew an order on the assignee in favour of plaintiff, for the amount expended by him on the work, and for a certain sum for his trouble. It was held that the work having been completed by the plaintiff, the order became irrevocable, whether drawn before or after performance of the work. And one of the creditors receiving a dividend out of the fund from the assignee, is liable to the plaintiff in an action for money had and received: Cunningham v. Garvin, 10 Pa. St. 366. Bell, J.: " If it be admitted that the order was made after the completion of the work, we have a case of a past consideration flowing from a benefit conferred. Now, though anciently this was thought inadequate to support a present promise to pay, it has long been settled that a benefit derived from the unsolicited services of another, creates a moral obligation of sufficient potency to sustain an express promise." On the other hand, where a grandfather devised to his grandson a tract of land, which, by his will, he directed should be patented, and the price thereof paid out of his estate, an uncle of the devisee's obtained the patent and paid for it, and brought an action against the executors of the grandfather's estate to recover it back; it was decided that it was a voluntary payment by him which gave no right of action : Turner v. Patridge, 3 P. & W. 172. Gibson, C. J.: " In procuring the patent without compulsion of the law, or request of the party interested, the plaintiff laid the defendants under a moral obligation, which, though sufficient as a consideration for an express promise, raised no promise by implication of law:" Baker v. Gregory, 28 Ala. 544. Taxes were paid through mistake by one not the owner, and the owner promised to repay. The promise and benefit were held equivalent to a previous request: Nixon v. Jenkins, 1 Hilt. 318. When one partner purchases of his copartner his interest in the partnership property, under a mistake as to the true condition of the partnership accounts, but without fraud in the partner selling, there is no legal consideration for a promise of the latter to make up the amount of the mistake. The moral consideration is insufficient: Eakin v. Fenton, 15 Ind. 59. It is a general but not a universal rule that a moral obligation is a sufficient consideration to uphold an express promise: Montgomery v. Lampton, 3 Metc. (Ky.) 519. An express promise to pay for past expenditures made by a third person for a parent is not binding on the child for want of consideration: Dawson v. Dawson, 12 Iowa, 512. A mere moral obligation constitutes no legal consideration for a contract: Updike v. True, 13 N. J. Eq.
*as we shall see hereafter, takes the debt out of the protection of the statute and makes the debtor liable (r).
I have now said what I intended to say with regard to the sufficiency of the consideration, and the result may be thus summed up :
Any advantage to the person promising, or damage, inconvenience, liability, or charge to the person to whom the promise is made, constitutes a sufficient consideration to uphold a promise; but, if that consideration be executed, that is, if, at the time of making the promise, that which is to be the consideration for it has already taken place, in such case there must have been a request by the person promising, in order to render such a consideration sufficient. If an express request can be shown, there can be no difficulty; but, if not, the law will imply one in certain cases, and those cases are*lst. Where the consideration consists in the person to whom the promise is made being compelled to do that which the person making it ought to have done, and was compellable to do. 2ndly. Where the consideration consists in something the benefit of which the person promising has adopted and enjoyed. 3rdly. Where the consideration consists in the person to whom the promise is made having voluntarily done that which the person promising ought to have done, and was compellable to do, in which third case the promise must be an express one, whereas in the two former the law implies the promise as well as the request. The remaining part of a contract is the promise, as to which the law in general leaves to the will of the parties this part of their mutual arrangement. Indeed, this has almost been said already in other words; for, where it is laid clown that the law will not weigh the adequacy of the consideration (s), it is implied that it will not weigh that of the promise. The law, however, will no more enforce an illegal promise than an illegal consideration; but in cases of executed contracts there is a rule of law which is well worthy of attention. It is, that where the law implies a certain promise *from a consideration executed-that consideration will not support any other promise than the one which the law implies (t). It is not difficult to see that this rule results from the principle which requires that every promise should be supported by a consideration; for, when the consideration in question is one from which the law implies a certain promise, that promise evidently exhausts the consideration, and there is nothing left to support any other promise. Such promise, consequently, however expressly made, is nudum pactum. Thus, it has been decided (u), that an account stated and a sum thereupon found to be due to the plaintiff from which the law implies a promise to pay in proesenti, will not support a promise to pay in futuro; and each of the Judges (v) said, that, in order to render the promisor liable to pay on a future day, there ought to be some new consideration. Similar in principle to the instance just mentioned is the case, where one, having become tenant to another of a farm, undertook to make a certain quantity of fallow, to spend £60 worth of manure yearly thereon, and to keep the buildings in repair: an undertaking which was considered unavailable *in law because no other consideration existed but the fact that the relation of landlord and tenant had been created between the parties, and the obligations sought to be enforced are not implied by law from that mere fact (x). The promise, as the Court of Exchequer said in a subsequent and closely analogous case (y), is laid more largely than the law will imply from such a relation.