ments 98 intended to be gratuitous when rendered or made. But even on so plain a matter as this, a few courts under the fiction of an implied request where a benefit has been given, or under the doctrine of moral consideration, have enforced such promises to pay for a past consideration though it was intended at the time when it was given to be gratuitous.99 Where, however, services are rendered because requested as a matter of business and where consequently there is a contemporaneous promise implied in fact to pay for them, the weight of authority in the United States supports the validity of a subsequent promise defining the extent of the promisor's undertaking.1

§ 147. Promises in consideration of moral obligation.

About the middle of the eighteenth century the term moral obligation as a kind of past consideration giving validity to a subsequent promise to fulfil the obligation gained currency. This seems to have been due to the influence of Lord Mansfield. He was trained in the doctrines of the Civil Law and

38 Marsh v. Chown, 104 Ia. 556, 73 N. W. 1046; Beaty v. Carr, 109 Ia. 183, 80 N. W. 326.

* Wilson v. Edmonds, 24 N. H. 517 (but see Osgood v. Conway, 67 N. H. 100, 36 Atl. 608); Hicks v. Burhans, 10 Johns. 243; Oatfield v. Waring, 14 Johns. 188; Nixon v. Jenkins, 1 Hilton, 318 (but see Streval v. Jones Estate, 106 N. Y. App. Div. 334, 94 N. Y. S. 627; Landis v. Royer, 59 Pa. 95; Sutch's Estate, 201 Pa. 305, 50 Atl. 943; Olsen v. Hagan, 102 Wash. 321, 172 Pac. 1173. There is more reason in justice for enforcing a subsequent promise to repay money paid under a mistake, for then there is at least no intent to make a gift. Such recovery was allowed in Packard v. Tisdale, 50 Me. 376, 377.

1 Lonsdale v. Brown, 4 Wash. C. C. 148, 150; Friedman v. Suttle, 10 Ariz. 57, 85 Pac. 726, 9 L. R. A. (N. S.) 933; Winefield v. Feder, 169 Ill. App. 480; Walker v. Irwin, 94 Ia. 448, 62 N. W. 785; Daily v. Minnick, 117 Ia. 563, 91

N. W. 913, 60 L. R. A. 840; Montgomery v. Downey, 116 Ia. 632, 88 N. W. 810; Viley v. Pettit, 96 Ky. 576, 578, 29 S. W. 438; Pool v. Horner, 64 Md. 131, 20 Atl. 1036; Stuht v. Sweesy, 48 Neb. 767, 67 N. W. 748; Wilson v. Edmonds, 24 N. H. 517; Yarwood v. Trusts & Guarantee Co., 94 N. Y. App. Div. 47, 87 N. Y. S. 947; In re Todd, 47 N. Y. Misc. 35, 95 N. Y. S. 211; Sutch's Estate, 201 Pa. 305, 50 Atl. 943; Edson v. Poppe, 24 S. D. 466, 124 N. W. 441, 26 L. R. A. (N. S.) 534; Boothe v. Fitzpatrick, 36 Vt. 681; Seymour v. Marlboro, 40 Vt. 171; Spencer v. Potter's Estate, 85 Vt. 1, 80 Atl. 821; Silverthorn v. Wylie, 96 Wis. 69, 71 N. W. 107; Raipe v. Gorrell, 105 Wis. 636, 81 N. W. 1009 (cf. Murtha v. Donohoo, 149 Wis. 481, 136 N. W. 158).

In Harman v. Harman's Est., 167 Ia. 106, 149 N. W. 72, the promise was enforced though all liability for the services for which the promise was made had already been discharged.

undoubtedly disliked the common-law doctrine of consideration. The theory of moral consideration was applied in various cases during Lord Mansfield's life, and shortly after his death, as in case of a promise by overseers of the poor to pay for expenses incurred in curing a pauper,3 a promise by an executor, having assets sufficient for the purpose, to pay a pecuniary legacy; a promise to pay the legal portion of a usurious debt; 5 a promise by a widow to indemnify a surety who had become such at her request during her coverture when she was incapable of contracting. But about the beginning of the nineteenth century a disposition became evident to restrict the doctrine of moral consideration, and in 1840, the Queen's Bench expressed its dissent from the doctrine and adopted as an accurate statement of the law the summary made in the reporter's note to an earlier decision: "an express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action if the obligation on which it is founded never could have been enforced at

2 This dislike appears not simply in his attempted extension of the common-law doctrine by the introduction of an antecedent moral obligation as a substitute for technical consideration, but also by his ruling in Pillans v. Van Mierop, 3 Burr. * 1663. See supra, § 107.

3 Watson v. Turner, Buller's N. P. 129. Cf. Warren v. Weaver, 78 N. H. 108, 97 Atl. 748.

Atkins v. Hill, Cowp. 284; Hawkes v. Saunders, Cowp. 289.

Barnes v. Hedley, 2 Taunt. 184. Lee v. Muggeridge, 5 Taunt. * 36. 7 In Littlefield v. Shee, 2 B. & Ad. 811, the action was brought against a widow for provisions furnished her personally during her coverture, but while her husband was abroad. The court denied recovery, and Lord Tenterden said: "I must also observe that the doctrine that a moral obligation is a sufficient consideration for a

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subsequent promise is one which should be received with some limitation." See also Meyer v. Haworth, 8 A. & E. 467; Mitchinson v. Hewson, 7 T. R. 348.

8 Eastwood v. Kenyon, 11 A. & E. 438, 450. The court said: "The enforcement of such promises by law, however plausibly reconciled by the desire to effect all conscientious engagements, might be attended with mischievous consequences to society, one of which would be the frequent preference of voluntary undertakings to claims for just debts. Suits would thereby be multiplied, and voluntary undertakings would also be multiplied, to the prejudice of real creditors. The temptations of executors would be much increased by the prevalence of such a doctrine, and the faithful discharge of their duty be rendered more difficult."

9 Wennall v. Adney, 3 B. & P. 247, 249. The note was published in 1804.

law, though not barred by any legal maxim or statute provision." At the present day there can be no doubt that the doctrine of moral consideration is wholly discredited in England, 10 though in England, as in the United States, certain exceptional cases hereafter referred to, such as a ratification of an infant's obligation, and promises to pay debts barred by the Statute of Limitations or bankruptcy still impose liability."

§ 148. A previous moral obligation is generally held an insufficient consideration in the United States.

The law in most of the United States, as in England, has rejected the principle of moral consideration, even though some exceptional cases of liability on promises made without present consideration may still exist as in the case of promises to pay debts barred by the Statute of Limitations, or by a discharge in bankruptcy. Such cases are now rested on other grounds and moral consideration as such is held insufficient to support a promise.12 There can be no question that in most States a plaintiff would invite disaster if he endeavored to support an action on a promise on the theory that the promise was supported by moral consideration without more. And that this result is desirable seems equally clear. However much one may wish to extend the number of promises which are enforceable by law, it is essential that the classes

10 In Leake on Contracts (6th ed.), 443, the author says: "A doctrine formerly prevailed that an express promise moved by a previously existing moral obligation furnished sufficient consideration to create a valid contract. But it is obvious that a promise moved by a sense of moral obligation only is simply voluntary; and it is now settled, in accordance with the general rule, that no valid contract arises from it."

11 See infra, §§ 151, et seq.

12 Morris v. Norton, 75 Fed. 912, 21 C. C. A. 553; Kenan v. Holloway, 16 Ala. 53, 50 Am. Dec. 162; Cook v. Bradley, 7 Conn. 57, 18 Am. Dec. 79; Finch v. Green, 225 Ill. 304, 80 N. E.

318; Eakin v. Fenton, 15 Ind. 59: Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453; Wills v. Ross, 77 Ind. 1; Farnham v. O'Brien, 22 Me. 475; Mills v. Wyman, 3 Pick. 207; Valentine v. Foster, 1 Met. 520; Hendricks v. Robinson, 56 Miss. 694, 31 Am. Rep. 382; Ehle v. Judson, 24 Wend. *97; Thomson v. Thomson, 76 N. Y. App. Div. 178, 78 N. Y. S. 389; Parsons v. Teller, 188 N. Y. 318, 80 N. E. 930; McGuire v. Hughes, 207 N. Y. 516, 101 N. E. 460, 46 L. R. A. (N. S.) 577; Sternbergh v. Provost, 13 Barb. 365; Nine v. Starr, 8 Ore. 49; Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dec. 573; Davis v. Anderson, 99 Va. 620, 39 S. E. 588. And see cases cited infra, § 156.

of promises which are so enforceable shall be clearly defined. The test of moral consideration must vary with the opinion of every individual. Indeed, as has been said, since there is a moral obligation to perform every promise, it would seem that if morality was to be the guide, every promise would be enforced and if the existence of a past moral obligation is to be the test, every promise which repeats or restates a prior gratuitous promise would be binding. So it is held that a promise to pay a woman on account of cohabitation which has ceased, even though the defendant had seduced the plaintiff; 14 a promise to pay for board or support previously furnished a needy relative to whom the promisor morally but not legally owes a duty of support; 15 or to pay the debts of a father, 16 or husband; "7 or to make a payment desired by the deceased previous owner of property inherited by the promisor; 18 or to indemnify one who has in fact suffered an injury though not a legal wrong from the promisor; 19 or to increase the compensation or contractual benefit to which the

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13 Binnington v. Wallis, 4 B. & Ald. 650; Jennings v. Brown, 9 M. & W. 496, 501; Beaumont v. Reeve, 8 Q. B. 483; Wallace v. Rappelye, 103 Ill. 229, 249. But such a promise (unlike a promise in consideration of continuing cohabitation) is not illegal and, therefore, in a jurisdiction where seals still have their same effect as at common law, a bond given in consideration of a cohabitation which has ceased is enforceable. Turner v. Vaughan, 2 Wils. 339; Annandale v. Harris, 2 P. Wins. 432. See infra, § 1745.

14 Beaumont v. Reeve, 8 Q. B. 483. 15 Mortimore v. Wright, 6 M. & W. 482; Cook v. Bradley, 7 Conn. 57, 18) Am. Dec. 79; Wiggins v. Keizer, 6 Ind. 252; Dawson v. Dawson, 12 Ia. 512; Mercer v. Mercer, 87 Ky. 30, 7 S. W. 401; Freeman v. Dodge, 98 Me. 531, 57 Atl. 884, 66 L. R. A. 395; Ellicott v. Peterson's Ex'crs, 4 Md. 476, 493; Miller v. Wyman, 3 Pick. 207; Dodge v. Adams, 19 Pick. 429; Kelley v. Davis, 49 N. H. 187, 6 Am. Rep. 499;

Freeman v. Robinson, 38 N. J. L. 383, 20 Am. Rep. 399; Chilcott v. Trimble, 13 Barb. 502; Valentine v. Bell, 66 Vt. 280, 29 Atl. 251; Davis v. Anderson, 99 Va. 620, 39 S. E. 588. See also Nine v. Starr, 8 Oreg. 49; Shugart v. Shugart, 111 Tenn. 179, 102 Am. St. Rep. 777.

16 McElven v. Sloan, 56 Ga. 208; Schroder v. Fink, 60 Md. 436; Parker v. Carter, 4 Munf. 273, 6 Am. Dec. 513.

17 Royer v. Kelly, 174 Cal. 70, 161 Pac. 1148; Stevens v. Mayberry, 82 Me. 65, 19 Atl. 92.

18 Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453; Gay v. Botts, 13 Bush, 299; Murphy's Est., 11 Phila. 2.

19 As from advice in regard to investment-Morris v. Norton, 75 Fed. 912, 21 C. C. A. 553; Johnson v. Johnson, 3 Hawks, 556; Martin's Estate, 131 Pa. 638, 18 Atl. 987. See also Tucker v. Haughton, 9 Cush. 350; Hawley v. Farrar, 1 Vt. 420.

promisee has become entitled beyond that fixed by law,20 is invalid. Under the same heading belong all cases of promises to pay for a benefit rendered in the past without a request by the promisor. Even though such benefits were not intended when rendered to be gratuitous the better authority denies recovery.21 Decisions denying recovery on promises to pay for improvement to the defendant's real estate rest on the same principle; 22 as do those denying recovery on a promise to repay the plaintiff money paid in discharging a debt of the defendant.23

§ 149. In a few states the doctrine of moral obligation is still recognized.

Though the doctrine of moral obligation is generally discredited, it still survives in a few States. In Georgia the Code 24 provides that a "strong moral obligation" is sufficient consideration to support a promise.25 In Illinois, 26 Mary

20 Steele v. Syracuse University, 174 N. Y. App. D. 41, 160 N. Y. S. 39; and see cases cited supra, § 142.

21 Pourtales Gorgier v. Morris, 7 C. B. (N. S.) 588; Wulff v. Lindsay, 8 Ariz. 168, 71 Pac. 963 (promise to pay for services rendered by a real estate broker); Dearborn v. Bowman, 3 Met. 155 (promise by election candidate to pay for services); Chamberlain v. Whitford, 102 Mass. 448; Sharp v. Hoopes, 74 N. J. L. 191, 64 Atl. 989 (promises to pay for services rendered by a real estate broker); Fulton v. Varney, 117 N. Y. App. Div. 572, 102 N. Y. S. 608 (a promise to pay money on account of a recommendation for certain employment made by the defendant).

22 Duncan v. Hall, 9 Ala. 128; McFarland v. Mathis, 10 Ark. 560; Carson v. Clark, 2 Ill. 113, 25 Am. Dec. 79; Carr v. Allison, 5 Blackf. 63; Welch v. Bryan, 28 Mo. 30; Frear v. Hardenbergh, 5 Johns. 272, 4 Am. Dec. 356; Majory v. Shubert, 82 N. Y. App. Div. 633, 81 N. Y. S. 703; Bailey v. Rutjes, 86 N. C. 517; Critcher v. Watson, 146

N. C. 150, 59 S. E. 544, 18 L. R. A. (N. S.) 270, 125 Am. St. Rep. 570. But see cases cited infra, § 150 ad fin.

23 Massachusetts Mut. L. I. Co. v. Green, 185 Mass. 306, 70 N. E. 202; Thomson v. Thomson, 76 N. Y. App. Div. 178, 78 N. Y. S. 389. 24 Sec. 2,741.

25 See McElven v. Sloan, 56 Ga. 208, 209; Gray v. Hamil, 82 Ga. 375, 10 S. E. 205, 6 L. R. A. 72; Brown v. Lathan, 92 Ga. 280, 18 S. E. 421. The Georgia court, however, in its latest pronouncements on the subject seems inclined to restrict rather than to enlarge the doctrine. In Davis v. Morgan, 107 Ga. 504, 43 S. E. 732, 61 L. R. A. 148, 97 Am. St. Rep. 171, the court held a moral obligation sufficient only where there was 'some antecedent legal obligation or present equitable duty."

26 Spear v. Griffith, 86 Ill. 552; Lawrence v. Oglesby, 178 Ill. 122, 52 N. E. 945. But see Thompson v. Minnich, 227 Ill. 430, 81 N. E. 336; Hobbs v. Greifenhagen, 91 Ill. App. 400.