Eastwood v. Kenyon | 11 Ad & E 438 | January 16, 1840 | Kessler, Gilmore & Kronman


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by Kessler, Gilmore & Kronman

11 Ad. & E. 438, 113 Eng. Rep. 482




Decided January 16th, 1840.


[11 Ad. & E. 438] Defendant may shew, under non assumpsit, that the promise was within stat. 29 Car. 2, c. 3, s. 4, and was not in writing. Section 4 of that statute, as to promises to pay the debt of another, contemplates only promises made to the person to whom another is liable; therefore a promise by defendant to plaintiff to pay A. B. a debt due from plaintiff to A. B. is not within the statute. A pecuniary benefit, voluntarily conferred by plaintiff and accepted by defendant, is not such a consideration as will support an action of assumpsit on a subsequent express promise by defendant to reimburse plaintiff. Therefore, where the declaration in assumpsit stated that plaintiff was executor of the father of defendant's wife, who died intestate as to his land, leaving defendant's wife, an infant, his only child and heir; that plaintiff acted as her guardian and agent during infancy, and in that capacity expended money on her maintenance and education, in the management and improvement of the land, and in paying the interest of a mortgage on it; that the estate was benefited thereby to the full amount of such expenditure; that plaintiff, being unable to repay himself out of the personal assets, borrowed money of A. B. on his promissory note; that defendant's wife, when of age and before marriage, assented to the loan and the note, and requested plaintiff to give up the management of the property to her, and promised to pay the note, and did in fact pay one year's interest on it, that plaintiff thereupon gave up the management accordingly; that defendant, after his marriage, assented to the plaintiff's accounts, and upon such accounting a certain sum was found due to plaintiff for monies so spent and borrowed; that defendant, in right of his wife, received all the benefit of plaintiff's said services and expenditure, and thereupon in consideration of the premises, promised plaintiff to pay and discharge the note: Held, on motion in arrest of judgment, that the declaration was bad as not disclosing a sufficient consideration for defendant's promise.


[S. C. 3 P. & D. 276; 9 L. J. Q. B. 409; 4 Jur. 1081. Approved and adopted, Leaf v. Tuton 1842, 10 Mee. & W. 398. Hargreaves v. Parsons, 1844,13 Mee. & W. 570. Followed, Reader v. Kingham, 1862, 13 C. B. N. S. 353. Approved, Crippo v. Hartnoll, 1863, 4 B. & S. 420. Adopted, Guild v. Conrad, [1894] 2 Q. B. 893.]


Assumpsit. The declaration stated, that one John Sutcliffe made his will, and appointed plaintiff executor thereof, and thereby bequeathed certain property in manner therein mentioned: that he afterwards died without altering his will, leaving one Sarah Sutcliffe, an infant, his daughter and only child and heiress at law surviving: that after making the will John Sutcliffe sold the property mentioned therein, and purchased a piece of land upon which he erected certain cottages, but the same were not completed at the time of his death; which piece of land and cottages were at the time of his death, mortgaged by him; that he died intestate in respect of the same, whereupon the equity of redemption descended to the said infant as heiress at law: that after the death of John Sutcliffe, plaintiff duly proved the will and administered to the estate of the deceased: that from and after the death of John Sutcliffe until the said Sarah Sutcliffe came of full age, [11 Ad. & E. 439] plaintiff, executor as aforesaid, "acted as the guardian and agent" of the said infant, and in that capacity expended large sums of money in and about her maintenance and education, and in and about the completion, management, and necessary improvement of the said cottages and premises in which the said Sarah Siltcliffe was so interested, and in paying the interest of the mortgage money chargeable thereon and otherwise relative thereto, the said expenditure having been made in a prudent and useful manner, and having been beneficial to the interest of the said Sarah Sutcliffe to the full amount thereof: that the estate of John Sutcliffe deceased having been insufficient to allow plaintiff to make the said payments out of it, plaintiff was obliged to advance out of his own monies, and did advance, a large sum, to wit £140, for the purpose of the said expenditure; and, in order to reimburse himself, was obliged to borrow, and did [113 Eng. Rep. 483] borrow, the said sum of one A. Blackburn, and, as a security, made his promissory note for payment thereof to the said A. Blackburn or his order on demand with interest; which sum, so secured by the said promissory note, was at the time of the making thereof and still is wholly due and unpaid to the said A. Blackburn: that the said sum was expended by plaintiff in manner aforesaid for the benefit of the said Sarah Sutcliffe, who received all the benefit and advantage thereof, and such expenditure was useful and beneficial to her to the full amount thereof: that when the said Sarah Sutcliffe came of full age she had notice of the premises, and then assented to the loan so raised by plaintiff, and the security so given by him, and requested plaintiff to give up to one J. Stansfield as her agent, the controul and management of the [11 Ad. & E. 440] said property, and then promised the plaintiff to pay and discharge the amount of the said note; and thereupon caused one year's interest upon the said sum of £140 to be paid to A. Blackburn. That thereupon plaintiff agreed to give up, and did then give up, the controul and management of the property to the said agent on behalf of the said Sarah Sutcliffe: that all the services of plaintiff were done and given by him for the said Sarah Sutcliffe, and for her benefit, gratuitously and without any fee, benefit, or award whatsoever; and the said services and expenditure were of great benefit to her, and her said property was increased in value by reason thereof to an amount far exceeding the said £140. That afterwards defendant intermarried with the said Sarah Sutcliffe, and had notice of the premises, and the accounts of plaintiff of and concerning the premises were then submitted to defendant, who then examined and assented to the same, and upon such accounting there was round to be due to plaintiff a large sum of money, to wit, &c., for monies so expended and borrowed by him as aforesaid; and it also then appeared, that plaintiff was indebted to A. Blackburn in the amount of the said note. That defendant, in right of his wife, had and received all the benefit and advantage arising from the said services and expenditure. That thereupon in consideration of the premises defendant promised plaintiff that he would pay and discharge the amount of the said promissory note; but that, although a reasonable time for paying and discharging the said note had elapsed and A. Blackburn, the holder thereof, was always willing to accept payment from defendant, and defendant was requested by plaintiff to pay and discharge the amount thereof, defendant did [11 Ad. & E. 441] not, nor would then, or at any other time pay or discharge the amount, &c., but wholly refused, &c.


Plea: non assumpsit.


On the trial before Patteson J. at the York Spring Assizes 1838, it was objected on the part of the defendant that the promise stated in the declaration, and proved, was a promise to pay the debt of another within the Statute of Frauds, 29 Car. 2, c. 3, s. 4, and ought to have been in writing; on the other hand it was contended that such defence, if available at all, was not admissible under the plea of non assumpsit. The learned Judge was of the latter opinion, and the plaintiff had a verdict, subject to a motion to enter a verdict for the defendant.


Cresswell, in the following term, obtained a rule nisi according to the leave reserved, and also for arresting judgment on the ground that the declaration shewed no consideration for the promise alleged. In Trinity vacation, 1839,[1]


Alexander and W. H. Watson shewed cause. The defence is not available under the general issue. [Upon this point, Buttemere v. Hayes,[2] decided on the same day, was mentioned to the Court, and was considered conclusive.] Then, the promise is not within the statute, which requires a writing only where the promise is "to answer for the debt, default or miscarriages of another person." Here there is no other person in default, but the promise is to pay the amount [11 Ad. & E. 442] to the plaintiff. [Patteson J. It is rather a promise to pay Blackburn; a promise to take up the bill.] In substance it is a promise to pay the plaintiff what he is liable to pay Blackburn. No case has yet decided that a promise to pay the promisee's own debt to a third person is within the statute, which evidently contemplates the debt or default of third persons. The same point might be made in every case of an implied promise to indemnify, as where the plaintiff accepts a bill for the defendant's accommodation, or where the drawer is sued on the default of the acceptor. It is said by Parke J. in [113 Eng. Rep. 484] Thomas v. Cook (8 B. & C. 728, 732), that if the plaintiff, at the request of the defendant, paid money to a third person, a promise to repay need not be ill writing. In Castling v. Aubert (2 East, 325), a contract to indemnify the plaintiff if he gave up a lien, was held not to be within the statute. Williams v. Leper (3 Burr. 1886), is to the same effect. (Green v. Cresswell[3] may be relied on, where a promise to indemnify the plaintiff against the consequence of becoming bail for a third party was held to require a writing; but there the defendant made himself answerable for the default of another, and so came exactly within the words of the statute. Then, as to the consideration; it has been distinctly held, that a moral obligation will support an express promise. There must be something done by the plaintiff at the defendant's request, or an act done for the defendant's benefit must be ratified by an express promise to pay; in either case, an action will lie. [Coleridge J. How are we to know the difference between an express and [11 Ad. & E. 443] an implied promise on the pleadings?] After verdict an express promise must be presumed. [Coleridge J. The same question may arise on demurrer.] In Lee v. Muggeridge (5 Taunt. 36), executors were held liable on a promise by the testatrix, after the decease of her husband, to pay a bond, made by her when under coverture, on the express ground that she was morally bound to pay it. The same doctrine was upheld in Seago v. Deane (4 Bing. 459), Atkins v. Hill (Cowp. 284), and in several other cases, cited in the note to Wennall v. Adney (3 B. & P., 247). A stronger case of moral obligation can hardly arise than the present, where the plaintiff is admitted to have been for many years the faithful guardian and manager of the estate of the defendant, while she was under age, and where the defendant and his wife have received great pecuniary benefit from the plaintiff's acts.


Cresswell, contra. The case is within the words, as well as the spirit and mischief of the statute. It is a promise to discharge the note. The words of the breach in the declaration all point at the note. If the defendant had paid Blackburn, could it have been contended that the promise was to pay the plaintiff; and that the payment to Blackburn was no answer to an action by the plaintiff? This is in truth a promise to pay Blackburn the debt due to him from the plaintiff, and it is not the less within the statute, because the promise is made to the plaintiff and not to Blackburn himself, for the Act does not say to whom the promise is to be made. The case of an accommodation acceptor, and the other cases of implied promises to indemnify are not in point. [11 Ad. & E. 444] They are either promises to pay the defendant's own debt, or they are cases of liability arising by operation of law, where no real promise is ever made or required, and which are, therefore, not within the mischief of the statute. In Williams v. Leper (3 Burr. 1886), and Castling v. Aubert (2 East, 325), there was a purchase by the defendant from the plaintiff. In the former, the landlord's right of distress was bought; in the latter, the plaintiff's lien on certain policies. Here the plaintiff has sold nothing to the defendant. Then as to the consideration: suppose A. gives a parol guarantee to a tradesman to induce him to supply goods to another, can A. be made liable on a subsequent parol promise? Such a construction would defeat the statute; yet the case is in principle the same as the present, and the moral obligation much stronger. A promise may be evidence of a precedent request, but has no efficacy ill itself. What is it that constitutes the moral obligation here? [Not the expenditure on the estate, for no duty was cast on the plaintiff to layout any thing on it, nor had he any right to interfere with the management; and if he had, the defendant had at that time no interest in it at all. If the honesty of the outlay causes the moral obligation, then it is indifferent whether it turned out profitable, or not, to the defendant or his wife. It would support a promise, though the property had been damnified by it. If the benefit constitutes the consideration, then whenever a party benefits another against his will, a subsequent promise will be a ground of action, If it had appeared that the wife was liable at the time of her marriage, then the consequent liability of the defendant might have supported his promise; but [11 Ad. & E. 445] no liability of the wife is stated, nor is it said that she promised in consideration of the premises. As to the agreement of the plaintiff to give up the control and management of the property, he had no right to either, and therefore nothing to give up; and if he had, it is not alleged to have been the consideration of the wife's promise. The doctrine of moral obligation as a ground for a promise must be [113 Eng. Rep. 485] limited to those cases where the law would have given a clear right of action originally, if some legal impediment had not suspended or precluded the liability of the party. The ordinary instances are infancy, bankruptcy, and the Statute of Limitations; and these were the cases referred to by Lord Mansfield when he laid down the above doctrine. As a general rule, it cannot be supported; Littlefield v. Shee (2 B. & Ad. 811). The law is correctly laid down and the cases explained in the note to Wennall v. Adney.[4]


Cur. adv. vult.


In this term (January 16th), the judgment of the Court was delivered by


Lord Denman C.J. The first point in this case arose on the fourth section of the Statute of Frauds, viz., whether the promise of the defendant was to "answer for the debt, default, or miscarriage of another person." Upon the bearing we decided, in conformity with the case of Buttemere v. Hayes (5 Mee. & W. 456), that this defence might be set up under the plea of non assumpsit.


The facts were that the plaintiff was liable to a Mr. Blackburn on a promissory note; and the defendant, for [11 Ad. & E. 446] a consideration, which may for the purpose of the argument be taken to have been sufficient, promised the plaintiff to pay and discharge the note to Blackburn. If the promise had been made to Blackburn, doubtless the statute would have applied: it would then have been strictly a promise to answer for the debt of another; and the argument on the part of the defendant is, that it is not less the debt of another, because the promise is made to that other, viz., the debtor, and not to the creditor, the statute not having in terms stated to whom the promise, contemplated by it, is to be made. But upon consideration we are of opinion that the statute applies only to promises made to the person to whom another is answerable. We are not aware of any case in which the point has arisen, or in which any attempt has been made to put that construction upon the statute which is now sought to be established, and which we think not to be the true one.


The second point arose in arrest of judgment, namely, whether the declaration shewed a sufficient consideration for the promise. It stated, in effect, that the plaintiff was executor under the will of the father of the defendant's wife, who had died intestate as to his real estate leaving the defendant's wife, an infant, his only child; that the plaintiff had voluntarily expended his money for the improvement of the real estate, whilst the defendant's wife was sale and a minor; and that, to reimburse himself, he bad borrowed money of Blackburn to whom he had given his promissory note; that the defendant's wife, while sale, had received the benefit, and, after she came of age, assented and promised to pay the note, and did pay a year's interest; that after the marriage the plaintiff's accounts were shewn to the defendant, who assented [11 Ad. & E. 447] to them, and it appeared that there was due to the plaintiff a sum equal to the amount of the note to Blackburn; that the defendant in right of his wife bad received all the benefit, and, in consideration of the premises, promised to pay and discharge the amount of the note to Blackburn.


Upon motion in arrest of judgment, this promise must be taken to have been proved, and to have been an express promise, as indeed it must of necessity have been, for no such implied promise in law was ever beard of. It was then argued for the plaintiff that the declaration disclosed a sufficient moral consideration to support the promise.


Most of the older cases on this subject are collected in a learned note to the case of Wennall v. Adney (3 B. & P. 249), and the conclusion there arrived at seems to be correct in general,


"that 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 cause of action, if the obligation, on which it is founded, never could have been enforced at law, though not barred by any legal maxim or statute provision."


Instances are given of voidable contracts, as those of infants ratified by an express promise after age, and distinguished from void contracts, as of married women, not capable of ratification by them when widows; Loyd v. Lee (1 Stra. 94); debts of bankrupt revived by subsequent promise after certificate; and similar cases. Since that time some cases have occurred upon this subject, which require to be more [113 Eng. Rep. 486] particularly [11 Ad. & E. 448] examined. Barnes v. Hedley (2 Taunt. 184), decided that a promise to repay a sum of money, with legal interest, which sum had originally been lent on usurious terms, but, in taking the account of which, all usurious items had been by agreement struck out, was binding. Lee v. Muggeridge,[5] upheld an assumpsit by a widow that her executors should pay a bond given by her while a feme covert to secure money then advanced to a third person at her request. On the latter occasion the language of Mansfield O.J. and of the whole Court of Common Pleas, is very large, and hardly susceptible of any limitation. It is conformable to the expressions used by the Judges of this Court in Cooper v. Marten (4 East, 76), where a stepfather was permitted to recover from the son of his wife, after he had attained his full age, upon a declaration for necessaries furnished to him while an infant, for which, after his full age, he promised to pay. It is remarkable that in none of these there was any allusion made to the learned note in 3 Bosanquet and Puller above referred to, and which has been very generally thought to contain a correct statement of the law. The case of Barnes v. Hedley (2 Taunt. 184), is fully consistent with the doctrine in that note laid down. Cooper v. Martin (4 East, 76), also, when fully examined, will be found Dot to be inconsistent with it. This last case appears to have occupied the attention of the Court much. more in respect of the supposed statutable liability of a stepfather, which was denied by the Court, and in respect of what a Court of Equity would hold as to a stepfather's liability, and rather to have as [11 Ad. & E. 449] sumed the point before us. It should, however, be observed that Lord Ellenboro ugh in giving his judgment says, "The plaintiff having done an act beneficial for the defendant in his infancy, it is a good consideration for the defendant's promise after he came of age. In such a case the law will imply a request; and the fact of the promise has been found by the jury"; and undoubtedly the action would have lain against the defendant whilst an infant, inasmuch as it was for necessaries furnished at his request in regard to which the law raises an implied promise. The case of Lee v. Muggeridge (5 Taunt. 36), must however be allowed to be decidedly at variance with the doctrine in the note alluded to, and is a decision of great authority. It should however be observed that in that case there was an actual request of the defendant during coverture, though not one binding ill law; but the ground of decision there taken was also equally applicable to Littlefield v. Shee (2 B. & Ad. 811), tried by Gaselee J. at N. P., when that learned Judge held, notwithstanding, that "the defendant having been a married woman when the goods were supplied, her husband was originally liable, and there was no consideration for the promises declared upon." After time taken for deliberation this Court refused even a rule to shew cause why the nonsuit should not be set aside. Lee v. Muggeridge (5 Taunt. 36), was cited on the motion, and was sought to be distinguished by Lord Tenterden, because there the circumstances raising the consideration were set out truly upon the record, but in Littlefield v. Shee the declaration stated the consideration to be that the plaintiff had [11 Ad. & E. 450] supplied the defendant with goods at her request, which the plaintiff failed in proving, inasmuch as it appeared that the goods were in point of law supplied to the defendant’s husband, and not to her. But Lord Tenterden added, that the doctrine that a moral obligation is a sufficient consideration for a subsequent promise is one which should be received with some limitation. This sentence, in truth, amounts to a dissent from the authority of Lee v. Muggeridge (5 Taunt. 36), where the doctrine is wholly unqualified.


The eminent counsel who argued for the plaintiff in Lee v. Muggeridge (5 Taunt. 36), spoke of Lord Mansfield as having considered the rule of nudum pactum as too narrow, and maintained that all promises deliberately made ought to be held binding. I do not find this language ascribed to him by any reporter, and do not know whether we are to receive it as a traditional report, or as a deduction from what he does appear to have laid down. If the latter, the note to Wennall v. Adney (3 B. & P. 249), shews the deduction to be erroneous. If the former, Lord Tenterden and this Court declared that they could not adopt it in Littlefield v. Shee (2 B. & Ad. 811). Indeed the doctrine would annihilate the necessity for any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it.


[113 Eng. Rep. 487] 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 [11 Ad. & E. 451] 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.


Taking then the promise of the defendant, as stated on this record, to have been an express promise, we find that the consideration for it was past and executed long before, and yet it is not laid to have been at the request of the defendant, nor even of his wife while sole (though if it had, the case of Mitchinson v. Hewson (7 T. R. 348), shews that it would not have been sufficient), and the declaration really discloses nothing but a benefit voluntarily conferred by the plaintiff and received by the defendant, with an express promise by the defendant to pay money.


If the subsequent assent of the defendant could have amounted to a ratihabitio, the declaration should have stated the money to have been expended at his request, and the ratification should have been relied on as matter of evidence; but this was obviously impossible, because the defendant was in no way connected with the property or with the plaintiff, when the money was expended. If the ratification of the wife while sale were relied on, then a debt from her would have been shewn, and the defendant could not have been charged in his own right without some further consideration, as of forbearance after marriage, or something of that sort; and then another point would have arisen upon the Statute of Frauds which did not arise as it was, but which might in that [11 Ad. & E. 452] case have been available under the plea of non assumpsit.


In holding this declaration bad because it states no consideration but a past benefit not conferred at the request of the defendant, we conceive that we are justified by the old common law of England.


Lampleigh v. Brathwait (Hob. 105), is selected by Mr. Smith (1 Smith's Leading Cases, 67), as the leading case on this subject, which was there fully discussed, though not necessary to the decision. Hobart C.J. lays it down that


"a mere voluntary courtesy will not have a consideration to uphold an assumpsit. But if that courtesy were moved by a suit or request of the party that gives the assumpsit, it will bind; for the promise, though it follows, yet it is not naked, but couples itself with the suit before, and the merits of the party procured by that suit; which is the difference";


a difference brought fully out by Hunt v. Bate (Dyer, 272 (a)), there cited from Dyer, where a promise to indemnify the plaintiff against the consequences of having bailed the defendant's servant, which the plaintiff had done without request of the defendant, was held to be made without consideration; but a promise to pay £20 to plaintiff, who had married defendant's cousin, but at defendant's special instance, was held binding.


The distinction is noted, and was acted upon, in Townsend v. Hunt (Cro. Car. 408), and indeed in numerous old books; while the principle of moral obligation does not make its appearance till the days of Lord Mansfield, and then under circumstances not inconsistent with this ancient doctrine when properly explained.


[11 Ad. & E. 453] Upon the whole, we are of opinion that the rule must be made absolute to arrest the judgment.


Rule to enter verdict for defendant, discharged.


Rule to arrest judgment, absolute.[6]


[1] June 19th. Before Lord Denman C.J., Patteson, Williams, and Coleridge Js.


[2] 5 M. & W. 456. The same point arose in Williams v. Burgess, 10 A. & E. 4099; and Joint v. Flint, 10 A. & E. 753.


[3] 10 A. & E. 453. See also Cresswell v. Wood, id. 460.


[4] 3 B. & P. 247. See also the argument of the Attorney-General in Haigh v. Brooks, 10 A. & E. 315, 316.


[5] 5 Taunt. 36. On a previous suit in equity to declare the bond a charge on the separate estate of the testatrix, the Master of the Rolls had refused relief. S. O. 1 V. & B. 118.


[6] The opinion ascribed to Lord Mansfield respecting the rule of nudum pactum, appears to be not an unreasonable deduction from the cases of Pillans v. Mierop 3 Burr. 1663; and Williamson v. Losh, reported from the paper books of Ashhurst J. in Chitty on Bills, 75, note (x) (9th ed.). Both are commented on by the Lord C. B. Skynner, in Rann v. Hughes, 7 T. R. 350, note (a). See also Evans's General View of the Decisions of Lord Mansfield, vol. i. p. 422.


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June 02, 2014


"Eastwood v. Kenyon" Eastwood v. Kenyon

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