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cause there was an imperfect obligation, would be to contradict this doctrine. It is clear that a promise cannot be implied from a mere moral obligation.
Many instances of mere gratuitous promises have already been given (k); it will be useful to subjoin others.
If the master of a ship promise his crew an addition to their fixed wages, in consideration of and as an excitement
their extraordinary exertions during a storm, this promise is nudum pactum-the voluntary performance of an act which it was before legally incumbent on the party to perform, being in law a worthless and insufficient consideration (1).
The law does not, at least, in general, allow a compensation to a witness for loss of time, in attending a trial upon subpæna; it being a duty imposed upon him by law to obey such subpæna: and therefore a promise to pay such remuneration, in consideration of the party's attendance, is not binding (m).
And a promise, even in writing, to pay a debt already incurred by a third person is not available, if there be no new consideration, as forbearance to sue the latter, &c.; but if credit were originally given to the third person at the promiser's request, this might constitute a sufficient consideration for his subsequent guarantee (n).
And a promise by a creditor to accept less than the full amount of his demand, or to give time for his existing debt, is void ; unless there be some new consideration, as an additional or different security, or a payment varying from that agreed upon, in respect of its being effected in a manner, or at a time, more beneficial to the creditor ; or unless an uncertain claim be reduced to a certainty; or unless the creditor's engagement to take less than his demand, or give time, be contained in a composition deed, or agreement entered into by the debtor with his creditors generally (o). In the latter case it would be a fraud
(k) Ante, 38, 48, 49.
(1) Hurris v. Watson, Peake's R. 72; Newman v. Walters, 3 B. & P. 612; Wilkinson v. Byers, 1 A. & E. 109; Nev. & Man. 853.
(m) Willis v. Peckham, 1 B. & B. 515; 4 Moore, 300, S. C.; per Lord Tenterden, C. J., in Collins v. Godefroy, 1 B. & Ad. 956, 957. See 7 Bing. 729; 9 B. & C. 872; 3 Man. & Ry. 631.
(n) 1 Rol. Ab. 27, pl. 49; and see Fell on Merc. Guar. 36 to 40; Lyon v. Lamb, there cited. See post, Index, tit. Guarantee.
(0) See the cases cited, 3 Chit. Com. L. 68; and post, Index, tit. Payment and Composition; and Philpot v. Briant, 4 Bing. 717; 1 M. & P. 754, S. C.
on other creditors, to sue the debtor for the remainder of the claim.
It appears that if a party to a bill or note be not liable thereon to a creditor, in consequence of such creditor, to whom he indorsed it for a debt, having lost the instrument, a promise by the former to pay it, is not founded on a sufficient moral obligation to render him liable on such promise; there being no new consideration, as an indemnity, &c. (p).
The cases relative to promises by executors to pay legacies will be considered hereafter. Where the plaintiff declared that the defendant, (who was sued in his individual character,) was liable in his capacity of executor to pay a certain debt to the plaintiff'; and then averred that in consideration thereof, he (personally) promised payment, the court held, that the declaration was substantially bad, and arrested the judgment; no additional or new consideration being shown for the enlarged responsibility arising from the promise (9). And upon the same principle, a declaration against a husband alone on his promise to pay the debt of his wife contracted before marriage, without showing any new consideration, was also considered insufficient, and the judgment was arrested (r). The consideration should be co-extensive with the promise, in order to support it.
OF THE PLAINTIFF BEING A STRANGER TO THE CONSIDERATION.—The cases seem to have been contradictory (though it is now a rule of law, which has been recognized in several cases, that the consideration for a promise must move from the plaintiff (s),) upon the question, whether a person can sue upon a promise, even though it be professedly for his benefit, where he is an entire stranger to the consideration, that is, has taken nothing of trouble or charge upon himself, or occasioned any benefit to the promiser, but such trouble has been sustained, or advantage conferred, by a third person. The contract is in such cases
(P) Davis v. Dodd, 4 Taunt. 602; per Park, J.; Champion v. Terry, 7 Moore, 136; Hansard v. Robinson, 7 B. &C. 90; 9 Dowl. & R. 860; ante, 33.
(9) Rann v. Hughes, 7 T. R. 350, note (a); cited anle, 5, note (8).
(1) Mitchinson v. Hewson, 7 T. R. 848. See 1 Taunt. 212; and post.
(s) 1 Selw. 9th ed. 52; Crow v.
Rogers, Stra. 592 ; Brown v. Mlason, 1 Ventr. 6; Price v. Euston, 1 N. & M. 303; 4 B. & Ad. 433, S. C. Per Patteson, J., Lilly v. Hays, 1 N. & P. 26, 27; Tipper v. Bicknell, 4 Scott, 462; 3 Bing. N. C. 710, S. C. Instance of part of the consideration moving from the plaintiff, Chunter v. Leese, 4 M. & W. 295.
binding, there being a sufficicnt consideration; and the only difficulty is, who should be made the plaintiff,—the party with whom the agreement was made and from whom the consideration moved; or the party meant by him to be benefited, and for whose advantage the act stipulated for is to be performed ? It is clear, that if the actual promisee be a mere agent for the person to be benefited, the latter may sue upon the agreement, though not known at the time to have been interested therein (t). But if no such agency exist, there seems to be great difficulty in permitting an entire stranger to the consideration to enforce the performance of the contract, by action in his own name.
Many of the older authorities tend to negative a right of action in a stranger to the consideration for a contract, although he is the party avowedly intended to be benefited by the promise (u). And in Crow v. Rogers (x), where the plaintiff declared that Hardy being indebted to him in 701., it was agreed ween Hardy and the defendant, that the defendant should pay the money to the plaintiff, and that Hardy should make the defendant a title to a house ; and that Hardy was ready to do so, and in consideration thereof the defendant promised to pay the plaintiff; the court, “ without much debate, held that the plaintiff was a stranger to the consideration, and gave judgment for the defendant.” This case was recognised by the court in Price v. Easton (y); in which it appeared that one W. P. was indebted to the plaintiff, and agreed with defendant to do work for him, and defendant agreed to retain the price of such work for the plaintiff; and the court arrested the judgment, after verdict, upon the ground that although the declaration averred that the defendant agreed to pay the plaintiff, it could not be collected therefrom, that the defendant made any such agreement with the plaintiff, or that the three parties were jointly privy and assenting to the arrangement.
(t) See Scrimshire v. Alderton, Stra. son, the latter may sue thereon, seem 1182; Coppin v. Walker, 7 Taunt. to bave reference only to cases in 237; Morris v. Cleasby, 1 M. & Sel. which the promisee received the pro579, 581; Hornby v. Lacy, 6 id. 166; mise, and made the contract, only as post, Principal and Agent. The dicta agent. in Marchington v. Vernon, 1 B. & P. (u) See the cases collected in 1 Vin. 101, note (c), per Buller, J.; and in Ab. 333 to 337, Actions of Assumpsit, The Fellmongers' Company v. Davis, (Z); Browne v. Mason, i Ventr. 6. 1 B. & P. 102, per Lord Alvanley, (r) Stra. 592. C. J., that if a promise be made to (y) i Nev. & Manning, 303 ; 4 B. another for the benefit of a third per- & Ad. 433, S. C.
In the more modern case of Lilly v. Hays (2), the above rule was recognised, and the only question there was, whether the consideration did move from the plaintiff. In that case it appeared that one Wood was indebted to the plaintiff, and when absent in Scotland remitied to the defendant 1001. to pay to the plaintiff; the defendant promised the plaintiff that he would pay him this 100l. ; and it was contended that the plaintiff ought to be nonsuited, as there was no consideration moving from the plaintiff to the defendant. A nonsuit was however refused, and a verdict found for the plaintiff. Patteson, J., after hearing the argument on an application for a new trial, observed, “ The only question in this case is, whether there is a consideration moving from the plaintiff. It is said that such is the rule of law hitherto adhered to, and to that I agree. But in an action for money had and received there seldom is a direct consideration moving from the plaintiff. Suppose the case of money sent to a general agent, who had promised to pay over the money sent to him—in an action against him by the person for whose use this money was sent, would it be any answer for him to say that the consideration did not move from the plaintiff? Again; suppose money is sent to a banker for the payment of certain debts, does not the consideration indirectly move from the creditor whose particular debt is to be paid, by the debtor's sending the money? The debtor may be considered as the agent of the creditor, and the money paid indirectly to the banker by the latter. So here the defendant, though not the general agent, became the agent of Wood in this transaction, therefore the consideration did move from the plaintiff through the instrumentality of Wood.
In Peate v. Dicken (a), the action was brought on an undertaking of the defendant in the following form,-“I undertake on behalf of Mr. Peate (in consideration of Mr. Dicken having this day given me an undertaking to procure Mr. Ward's check or note in favour of Mr. Peate for 1501. on account of a debt due from Mr. Chambers to Mr. Peate,) that Mr. Chambers shall have credit for that sum in his accounts with Mr. Peate, and that Mr. Ward shall stand in the place of Mr. Peate to that amount; and I further undertake that Mr. Peate shall not personally dispute Mr. Ward's right to deduct that sum from the
(z) 1 Nev. & P, 26.
(a) 1 C. M. & R. 422 ; 5 Tyr. 116; 3 Dowl. P. C. 171, S. C.
accounts owing by the colliers of the Black Park colliery to Mr. Chambers ;” and it was held that this agreement showed a sufficient consideration moving from the plaintiff, Lord Lyndhurst, C. B., observing, “ the plaintiff undertakes to give up his claim upon Chambers, is not that a detriment to the plaintiff, and is it not a good consideration ?" And the same rule is recognized in the more modern case of Tipper v. Bicknell (b).
There are, however, many old cases which seem to support a contrary doctrine. Thus, it has been decided, that if A. give goods to B. of the value of 801., on condition that he pay 201. to C., the latter may sue B. for the 201., for it became a debt to C.(c). So it has been held, that if A., who is the uncle of B. an infant, deliver 121. to J. S. to educate B., and in consideration thereof J. S. promises to educate B., and also at his full age to pay to him, B., the said 12.; B., when he comes to his full age, may maintain an action against J. S. for the 121. “ for the use of the money in the meantime was the consideration of the education, and the money was to be paid to B.(d).” A father was seised in fee of land, and was about to cut timber therefrom, to raise a portion for his daughter. The defendant being his son and heir, promised the father, in consideration that he would forbear to fell the timber, to pay the daughter this portion. It was decided by the Court of King's Bench, and afterwards by the Exchequer Chamber upon a writ of error, that the daughter might sue the son for the recovery of this money, although the consideration moved from the father to the son; the parties to the contract having the benefit of the daughter in view (e). In the two latter instances, the court may probably have been in some degree influenced by the circumstance that the promisee, and the person for whose advantage the contract was made, were intimately related. But perhaps the cases do not require such ground of support (f).
(6) 4 Scott, 462; 3 Bing. N. C. 710, S. C.; ante, 34.
(c) Sturkie v. Milne, M. T. 1651; 1 Ról. Ab. Action sur Case, 32, pl. 13. See id. 27, (L) 40; 31 (L) 5; Com. Dig. Action upon the Case upon Assumpsit, (B 15); Disbourne v. Denabie, 1 Rol. Ab. p. 30, 31, pl. 5; 1 Vin. Ab. 333, pl. 5.
(d) Between Oldham and Bateman, Pasch. 13 Car., B. R., upon a motion
in arrest of judgment; 1 Vin. Ab. 334, 335.
(e) Dutton v. Poole, M. 29 Car. 2; 1 Ventr. 318, 332 ; S. C. in 2 Lev. 210; Sir. T. Ray. 302; and Sir T. Jones, 102 ; recognised by Lord Mansfield in Cowp. 443, and by Burrough, J., in 5 Moore, 31, 32.
(f) And see Carnegie v. Waugh, 2 D. & R. 277; 4 B. & C. 664, S. C.; 3 B. & Ald, 280, 281; i Chit. on Pl. 6th ed.