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was moved by the precedent request, either express, or under the particular circumstances to be implied, of the party promising; and such request must always be laid in the declaration (b). But it is only necessary in the case of executed considerations to state that the consideration for the defendant's promise moved at the defendant's request (c); where the act of the plaintiff and the promise of the defendant are simultaneous, a request by the defendant is not necessary (d). Therefore, where A!'s servant was arrested for a trespass, and J. S., who knew A., without his knowledge bailed his servant, and afterwards A., for his friendship, promised to save him harmless; it was held that the promise was void : because the bailing, which was the consideration, was the voluntary courtesy of J.S., and was past and executed before (e). And a promise without any new consideration to pay the debt of a third person already incurred, falls within the same principle (f ). But where the plaintiff's act is procured by the defendant's request, the subsequent promise is not a naked one, but couples itself with the precedent request, and is therefore founded on a good consideration (g): as if, in the instance last put, the third person were credited at the instance of the defendant (h). In general, where the defendant has derived no benefit from the plaintiff's act, the prior request must be expressly proved (i). But where a party has derived a manifest personal (k) benefit from the precedent consideration, and subsequently promises payment, this promise will be tantamount to, and evidence of, a prior request, which shall in such case be implied (1). As where A. pays a sum of money, to a third person, , for B., without his knowledge or request, and B. subsequently promises payment, here the circumstances furnish evidence of a prior request. So, if A. buy goods for B. without his sanction, yet B. subsequently receives the goods with knowledge of the
(6) 1 Saund. 264, note (1); 3 Chit. (8) Lampleigh v. Brathwait, Hob. Com. L. 70; 1 Chit. Pl. 6th ed. 329; 106; Com. Dig. Action upon the Case Streeter v. Horlock, 1 Bing. 34; 7 upon Assumpsit (B), (B 12); 1 Saund. Moore, 283, S. C.
264, note (1); Lord Suffield v. Bruce, (c) King v. Sears, 2 C. M. & R. 48. 2 Stark. R. 175. (d) Id., and Tipper v. Bicknell, 3 (h) Ante, 52. Bing. N. C. 715; 4 Scott, 462, S. C. (i) Naish v. Tatlock, 2 Hen. Bla.
(e) Hunt v. Bate, Dyer, 272 a; 319; sed vide Gibson v. Coulthorpe, 1 Rol. Ab. (Q), pl. 2, 3; Sidenham v. D. & R. 205. Worlington, 2 Leon. 224, 225. Ante, 52.
(1) See ante, 48, 49, 50.
circumstances, a prior request from B. to A. to order the goods for him shall be implied (m).
We have already seen that an existing moral obligation is, in general, a sufficient consideration for a subsequent express promise (n).
An executed consideration is the groundwork or foundation of the promise on which the defendant is charged; but, being only matter of inducement, it need not, in pleading, be stated with the same degree of certainty and particularity, as is necessary in the case of an erecutory consideration (o). But care must be taken to avoid a variance in stating and reciting a prior contract which has been broken, where the immediate contract declared upon refers to such prior contract, and is incorporated therewith (p).
2. An erecutory consideration generally constitutes a condition precedent to be performed by the plaintiff, before his right of action accrues; and such performance must be laid in the declaration with certainty, and proved at the trial (9).
3. A concurrent consideration arises in the case of mutual promises; and where the act to be done by the plaintiff as the consideration for the defendant's promise, and the promise itself are simultaneous, the law does not require, as in the case of a byegone transaction, that in order to make the promise binding the plaintiff should have acted at the defendant's request (r). So a promise for a promise is a good consideration; but in general the promises must be reciprocally binding, or neither party is bound (s).
In the case of a current consideration, the plaintiff's promise is executed, but the thing to be performed by him is executory. And where the performance is not a condition precedent, it is not necessary to state it, because the plaintiff's mere agreement to do the act is a sufficient consideration, and the defendant has his remedy thereon. Where, however, the respective acts to be performed, are not independent of each other, but the fulfilment of one is the consideration of the performance of the other, it is
(m) 1 Saund. 264, n. (1).
(9) 1 Chit. Pl. 6th. ed. 296. (n) Ante, 47.
(r) Tipper v. Bicknell, 3 Bing. (0) i Chit. Pl. 6th. ed. 298.
N. C. 715; 4 Scott, 462, S. C., per (p) Andrews v. Whitehead, 13 East, Tindal, C. J. 102; 1 Chit. Pl. 6th. ed. 295, 298. (8) Ante, 46, 47.
necessary, even in the case of mutual promises, as an agreement to marry, to sell, or accept goods (), that there should be an averment and proof of a performance, or readiness to perform (u).
4. A continuing consideration, being one in part executed, but which still continues, is also in many cases sufficient to sustain a promise: as in consideration that the defendant had become and was the plaintiff's tenant, he undertook to manage the farm in a husband-like manner (r); or in consideration that the lessee then in possession had paid his rent very well, to save him harmless; “ for prompt payment of the rent is a continuing consideration, when he remains in possession (y).” But a promise by a tenant from year to year, after the tenancy commenced, and without any new consideration, to repair substantially, or to do any other act the obligation to do which does not by law attach upon such a tenant, is not binding. And therefore a declaration in consideration that the defendant had become, and was, tenant to the plaintiff, of a farm, the defendant undertook to make a certain quantity of fallow, to spend 601. worth of manure every year, and to keep the buildings in repair, was held bad on general demurrer; those obligations not arising out of the bare relation of landlord and tenant (z). So marriage is a continuing consideration (a). And the payment of money for the defendant, and the having obtained a release for him, amount to a good continuing consideration for his promise (b).
The ordinary case of a promise, in respect of an existing debt, or legal liability before incurred by, and then binding on, the party promising, may also be cited as an illustration of this
(t) Rawson v. Johnson, 1 East, 203; 6 Bing. 506 ; 4 M. & P. 245, S. C.; Waterhouse v. Skinner, 2 B. & P. 447; cited ante, 34, note (u). 1 Saund. 320 e, note (5).
(2) Brown v. Crump, 1 Marsh, 567; (u) i Chit. Pl. 6th ed. 320.
6 Taunt. 300, S. C.; Horsefall v. Ma() Powley v. Walker, 5 T. R. 373; ther, Holt, N. P. R. 7. Legh v. Hewitt, 4 East, 154; and (a) Bac. Abr. Assumpsit (D); Marsh Beale v. Sanders, 3 Bing. N. C.860; 5 v. Rainsford, 2 Leon. 111, Sidenhum Scott, 58, S. C.; post, Index, Land- v. Worlington, id. 224. lord and Tenant.
(b) Webb v. Russell, 2 Keb. 99. (y) Pearle v. Unger, Cro. Eliz. 04; (c) Hodge v. Vavasor, i Roll. R. 1 Leon. 102, S. C. ; Com. Dig. Action 414. See Lee v. Maddox, 1 Leon. upon the Case upon Assumpsit (B 12); 168. 7 B. & C. 427. See Adums v. Dansry.
SECTION II. 1. Of the form of a Contract, and how affected in general by
Statute of Frauds.
- Signature.— Certainty.
Must be reasonable.— Liberal.- Fuvouruble.- Popular Meaning of Words
to be adopted.- Mercantile Contracts.- Whole of the Agreement to be considered. - Local Custom.- To be laken most strongly against the
l'ontractor.- Implied attributes. 3. Of Parol Evidence in Contradiction to a Written Agreement.
1. Of The Form Of A Contract, AND HOW AFFECTED IN GENERAL BY STATUTE OF FRAUDS.- What constitutes an Agreement.-We have already observed, that to constitute a valid agreement not under seal, there must be the mutual and definitive assent of both parties; that each party must be bound by the contract in regard to those things which he is to perform; and that it must be founded on a good consideration. Where the contract is required by the statute of frauds to be in writing, it is essential that all these matters should appear upon the face of the document or memorandum which constitutes the agreement. If, in such case, only the offer or proposal of one party to enter into the contract were in writing, and a written acceptance of the proposal could not be shown (c); or if the absolute engagement of one party were shown to be in writing, and it could not be collected therefrom upon what consideration he contracted; there would not be a sufficient written agreement between the parties (d). And even where the agreement is unnecessarily in writing, great difficul. ties occur in the production of parol evidence, to supply omissions in, or afford explanation of the instrument(e). It is therefore important, where there is a written contract between the parties,
(c) Gaunt y. Hill, i Stark. R. 10; (d) Wain v. IVarlters, 5 East, 10; Milver v. Richardson, I M. & Scl. Saunders v. Wakefield, 4 B. & Ald. 557 ; Drant v. Browon, 3 B. & C. 668; 595 ; Jenkins v. Reynolds, 0 Moore, 5 D. & R. 582, S. C.; Hawkins v. 86; 3 B. & B. 14, S. C.; Morley v. Ilarre, 3 B. & C. 690; 5 D. & R. Boothby, 8 Bing. 107; 10 Moore, 395, 512, S. C.; ante, 11 ; Mozley v. Tink- S. C.; Jumes v. ll’illiams, 5 B. & Ad. ler, 1 Gale, 11; 1 C. M. & R. 692; 1112; posi, Index, Frauds, Statute of. 5 Tyrw. 416, S. C.
(e) See post, 99.
that it should comprehend all those matters which are essential to give it validity, in reference to the nature of an agreement not under seal; and should clearly and explicitly state the stipulations of each of the parties. Tindal, C. J., in Laythoarp v. Bryant (f) observes, “ An agreement is not perfect unless in the body of it, or by necessary inference, it contain the names of the two contracting parties, the subject-matter of the contract, the consideration and the promise.”
Writing, when necessary. It is a general rule, that a simple contract need not be reduced into writing. Where there is no special prohibition to the contrary, where written evidence of the contract or promise is not expressly required, the agreement or promise is valid, though it be verbal only (g).
The statute 29 Car. 2, c. 3, commonly called the Statute of Frauds (h), requires that, in a great variety of cases, contracts shall be in writing, and signed by the party to be charged thereon.
The statute was passed to prevent fraud and perjury, in upholding fictitious or misrepresented contracts; and this object is effected by requiring that the various agreements mentioned in the act shall be reduced into writing; and that such writing shall be signed by the party to be charged therewith, or by his agent (i). It is, however, observable, that the statute does not, in any respect, alter the nature or effect of a contract. It must still be founded on a sufficient consideration (k); and the statute merely requires the ceremony of reducing into writing the en
(1) 2 Bing. N. C. 749; 3 Scott, hum v. Chetwynd, 1 Burr. 418; 1 Bla. 238, S. C.
R. 99, S. C.; Gilb. Eq. R. 171; Ilain (g) See ante, 4. A deed is in
many v. Warlters, 5 East, 17. It is said to instances requisite. It is necessary in be one of the wisest laws in our staorder to convey a freehold interest in tute-book ; Chaplin v. Rogers, 1 East, land; or even an easement claimed as
and see Chater v. Becket, 7 T. an incorporeal right, to be exercised R. 204; Stunders v. Wakefield, 4 B. over the grantor's premises ; Cocker & Al. 600; Baldey v. Parker, 2 B. & v. Couper, 1 C. M. & R. 418 ; 5 Tyr. C. 40; 3 D. & R. 222, S. C.; 2 Ves. 103, s. C.; Bird v. Higginson, 2 Ad. jun. 2 13. See 2 Pothier, by Evans, 193. & E. 704; 1 Harr. 618 ; Bridge v. (i) Sed vide per Parke, B. in Elliott Blanchard, 1 Ad. & E. 536; 5 N. & v. Thomus, 3 M. & W. 177. M. 567, S. C.; see Hewlins v. Ship- (k) Mitchinson v. Hewson, 7 T. R. pam, 5 B. & C. 221; 7 D. & R. 783, 350, note; 1 Saund. 211, note (2); S.C.; Rer v. Inhabitants of Ridgwell, Allen v. Bennet, 3 Taunt. 173, 174 ; 6 B. & C. 665; 9 Dowl. & R. 678; Barrell v. Russell, 4 id. 117; Clancy see Com. Dig. Fuit.
v. Piggott, 2 Ad. & E. 475 ; 1 llarr. (1) By whom penned, see Wind
20, S. C.