CH. II. s. 2. credited at the instance of the defendant (c). And so, an action Requisites will lie against A. for the use and occupation of premises by B., of Simple Contract if it be proved that the latter was permitted to use and occupy (Considera- them at A.'s request (d). tion). Implied consideration. Request when implied. There are cases, however, in which although the consideration is executed, yet the act which is stated as the consideration cannot, from its nature, have been gratuitous, but imports a consideration per se (e). And in such cases, it is not necessary either to plead or prove that the consideration was moved at the defendant's request, as this would be merely expressio eorum quæ tacite insunt. Thus, in a claim for money lent, it is unnecessary to prove that the money was lent at the defendant's request (f). And so, in an action for the price of goods sold and delivered by the plaintiff to the defendant, it was not necessary-even before the passing of the Common Law Procedure Act, 1852-to aver that the defendant promised to pay such price, in consideration of their having been sold and delivered to him on request (g). And it is to be observed, further, that the request which is necessary to support an executed consideration, if it have not been made in express terms, will be implied in the following circumstances:-First: where the consideration consists, in the plaintiff having been compelled to do that to which the defendant was legally compellable (h). Secondly: where the defendant has adopted and enjoyed the benefit of the consideration for here his subsequent assent amounts to a ratihabitio; and such ratification may be relied on as evidence of a previous request (i). And, thirdly where the plaintiff voluntarily does that to which the defendant was legally compellable, and the defendant afterwards, in consideration thereof, expressly promises (k). : But it would seem, from what has been already stated on the subject of moral considerations, that if the plaintiff were voluntarily to do an act to which the defendant was only morally compellable; and the latter were afterwards, in consideration thereof, expressly to promise, the law would not imply that the act in question had been done at the defendant's request, so as to make his promise the foundation of an action. (c) Fell on Merc. Guar. 36-40. (e) See note to Fisher v. Pyne (1840), (f) Victors v. Davies (1844), 12 M. & W. 758. (g) See per Parke, B., in Victors v. Davies (1844), 12 M. & W. 758, 759. (h) Jeffrays v. Gurr (1831), 2 B. & Ad. 833; Pownall v. Ferrand (1827), 6 B. & C. 439; Exall v. Partridge (1799), 8 T. R. 308; 4 R. R. 656; Grissel v. Robinson (1836), 3 Scott, 329. (i) Eastwood v. Kenyon (1840), 11 A. & E. 438, 451; 1 Smith, L. C. (k) Wing v. Mill (1817), 1 B. & Ald. 104; Paynter v. Williams (1833), 1 C. & M. 810. CH. II. s. 2. What express executed con Again, an executed consideration may be the groundwork, or foundation, either of an express or an implied promise. But here we must notice a very important rule in connection with this subject, namely, that where an executed consideration is one from which the law will imply a promise, no express promise made in respect of that consideration can be enforced, if it differ from the promise an promise which the law would imply from the same considera- sideration will tion (1). Thus, an executed consideration, whereon the law support. implies a promise to pay on request,-as upon an account stated,is not sufficient to support a promise to pay at a future day (m). So, the bare relationship of landlord and tenant, is not a sufficient consideration to support a promise, that the defendant had power to let the premises to the plaintiff, without restriction as to the purpose for which the same should be used (n). And where the declaration was, that in consideration that the plaintiff, at the request of the defendant, had bought a horse of the defendant at a certain price, the defendant promised that the horse was free from vice it was held, on motion in arrest of judgment, that the executed consideration though laid with a request, neither raised by implication of law the promise alleged, nor would support such promise presuming it to have been express (o). In cases such as these the consideration would appear to be exhausted by the promise which the law implies from the very execution of it; and, consequently, any promise made afterwards must be nudum pactum, there remaining no consideration to support it (p). It is said, however, that there are cases in which a consideration which is insufficient to raise an implied promise, will, nevertheless, support an express one. These are cases of voidable contracts subsequently ratified; of debts barred by operation of law, subsequently revived; and of equitable and moral obligations which, but for some rule of law, would of themselves have been sufficient to raise an implied promise (q). And so it is said, that there are cases in which the party suing has suffered a loss or conferred a benefit on the defendant at his request, under circumstances which would not raise any implied promise, but in which the act done at the request of the party charged is held, notwithstanding, to be a sufficient consideration to render binding a promise afterwards made by him in respect of the act so done (r). (1) Per Tindal, C. J. (1844), Kaye v. Lutton, 7 M. & G. 807, 815; Roscorla v. Thomas (1842), 3 Q. B. 234; Jackson v. Cobbin (1841), 8 M. & W. 790; Hopkins V. Logan (1839), 5 M. & W. 241; Lattimore v. Garrard (1848), 1 Exch. 809. (m) Hopkins v. Logan (1839), 5 M. & W. 241. (n) Jackson v. Cobbin (1841), 8 M. & W. 790, 795. (0) Roscorla v. Thomas (1842), 3 Q. B. 234. (p) Per Tindal, C. J. (1844), Kaye v. Dutton, 7 M. & G. 807, 816. (4) Per Cur., Roscorla v. Thomas (1842), 3 Q. B. 234, 237. (r) Per Tindal, C. J., Kaye v. Dutton (1844), 7 M. & G. 807, 816. Requisites CH. II. s. 2. An executory consideration generally constitutes a condition of Simple precedent, to be performed by the plaintiff before his right of action accrues; and the fact of such performance must be averred in the statement of claim, otherwise it will be bad in substance (s). Contract (Consideration). Executory. Concurrent. Continuing A concurrent consideration arises in the case of mutual promises, a promise for a promise being, as we have seen, a good consideration. In the case of concurrent considerations, the plaintiff's promise is executed, but the thing to be performed by him is executory. Hence, although the acts to be done by the plaintiff are not conditions precedent, but concurrent with those to be done by the defendant, yet he cannot maintain an action without showing performance of, or an offer to perform his part. It is sufficient, however, for the plaintiff in such a case to aver readiness and willingness to perform (t). A continuing consideration, being one in part executed, but consideration. which still continues, is also in many cases sufficient to support a promise (u), e.g. in consideration that the defendant had become and was the plaintiff's tenant, he undertook to manage the farm in a husbandlike manner (v); or, in consideration that the lessee then in possession had occupied the land and paid his rent, the lessor promised to save him harmless against all persons for his occupation during the term, because "the occupation which is the consideration continues" (x). So, the payment of money for the defendant, and the having obtained a release for him, amount to a good continuing consideration for his promise (y). And where the plaintiff declared that, in consideration he had bought of the defendant three parcels of land on such a day, the defendant afterwards promised to make him a sufficient assurance thereof: the consideration was adjudged to be sufficient; for the assurance was the substance of the matter (z). SECT. 3. Of the Plaintiff being a Stranger to the Consideration. Formerly the cases were contradictory upon the question whether the considera- a person can sue upon a promise, even though it be professedly for A stranger to tion cannot enforce a contract. (s) See Graham v. Gibson (1850), 4 Exch. 768. (t) Giles v. Giles (1846), 9 Q. B. 164, 174; Waterhouse v. Skinner (1801), 2 B. & P. 447. (u) See Mattock v. Kinglake (1838), 8 A. & E. 957. (v) Powley v. Walker (1793), 5 T. R. 373; 2 R. R. 619. (x) Bac. Abr. Assumpsit (D.); Pearle v. Unger (1588), Cro. Eliz. 94; Com. Dig. Action upon the Case upon Assumpsit (B. 12). (y) Webb v. Russell (1667), 2 Keb. 99. (2) Warcop v. Morse (1589), Cro. El. 138. CH. II. s. 3. As to the his benefit, where he is an entire stranger to the consideration; that is, where he has neither taken any trouble or charge upon himself, nor conferred any benefit on the promiser; but such trouble has been sustained, or advantage conferred by a third person. But although, if the actual promisee be a mere agent for the person to be benefited, the latter may sue upon the agreement, notwith- plaintiff being standing he was not known at the time to be interested therein (a); a stranger. yet it is now clearly settled, that a mere stranger to the consideration cannot enforce performance of the contract, by an action thereon in his own name, although he be the party avowedly intended. to be benefited thereby (b). Thus, in Crow v. Rogers (c), where the plaintiff declared, that, Hardy being indebted to him in 70l., it was agreed between 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." To the same effect is Bourne v. Mason (d), where, although the declaration showed a promise by the defendant for the benefit of the plaintiff, yet the Court, on motion, arrested the judgment, on the ground that the plaintiff was a mere stranger to the consideration. And the principle of these cases was recognized by the Court in Price v. Easton (e) in which it appeared that one W. P., being indebted to the plaintiff, had agreed with the defendant to do work for him, and that the defendant had agreed to retain the price of such work for the plaintiff; and the Court, on the authority of Crow v. Rogers, arrested the judgment, 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. And all the more recent authorities support this decision (ƒ). Indeed, in one case the Court of Exchequer expressed an opinion, that where there was a contract with several parties, founded on a consideration to part of which (a) See Phelps v. Prothero (1855), 16 C. B. 370; Scrimshire v. Alderton (1730), Str. 1182; Coppin v. Walker (1816), 7 Taunt. 237; Morris v. Cleasby (1813), 1 M. & S. 576, 581; 14 R. R. 531; Hornby v. Lacy (1817), 6 id. 166; 18 R. R. 645. (b) Per Wightman, J., Tweddle v. Atkinson (1861), 1 B. & S. 393, 398; per Parke, B., Jones v. Robinson (1847), 1 Exch. 454, 456. (e) Crow v. Rogers (1724), Str. 592. (d) Crow v. Rogers, 1 Vent. 6 (1670). (e) Bourne v. Mason, 4.B. & Ad. 433 (1833). (f) Tweddle v. Atkinson (1861), 1 B. & S. 393. And see Hybart v. Parker (1858), 4 C. B., N. S. 209; Robertson v. Wait (1853), 8 Exch. 299; per Patteson, J., Thomas v. Thomas (1842), 2 Q. B. 851, 859; Lilly v. Hays (1836), 5 A. & E. 548; Rotherham, &c. Co., In re (1883), 25 Ch. D. 108. CH. II. s. 3. each was a conducing party, the action should be by all, on the Requisites promise made to all, although only one was to receive the money (g). of Simple Contract (Consideration). Consideration moving from several. Action for money had aud received. Deeds. Covenants which run with the land, or with the reversion. Parties taking the benefit of covenants, under 8 & 9 Vict. c. 106, 8. 5. When the And generally it may be laid down, that to entitle a third person not named as a party to a contract to sue either of the contracting parties, that third person must possess an actual beneficial right which places him in a position of cestui que trust under the contract (h). But where a consideration moves from two, in which each has a separate interest, that will support a promise made to one (i). And if money be sent to defendant by a debtor of plaintiff, and he admits to hold it for plaintiff's use, and promises to pay him, there is a sufficient consideration moving from the plaintiff, to support an action for money had and received (k). As to deeds, it may be mentioned that where A., by bond, acknowledged himself to be bound to B. in 100l. to be paid to B. or C.; it was held that B. might sue A. on the bond (1). So where a covenant runs with the land-i.e. where it concerns the land, and there is a privity of estate between the covenanting parties (m)-the covenant goes with the land, and the assignee of the land may sue thereon (n). And in like manner, by force of the statute 32 Hen. 8, c. 34, where a covenant in a lease concerns the things demised, the assignee of the reversion may take advantage of such covenant (0); while by force of the Conveyancing Act, 1881, sects. 10-12, similar benefits, with corresponding obligations, are conferred upon an assignee of any reversionary estate, notwithstanding the severance of such reversionary estate. So, by the Real Property Act, 1845 (8 & 9 Vict. c. 106), s. 5, under an indenture executed after the 1st October, 1845, an immediate estate in, and the benefit of any condition or covenant respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to such indenture. So on a covenant relating to the realty, which does not determine heir may sue. by the death of the ancestor, the heir may sue although he be not named therein (p). (g) Chanter v. Leese (1838), 4 M. & W. (h) Gandy v. Gandy (1884), 30 Ch. (k) Lilly v. Hays (1836), 5 A. & E. 548. (1) White v. Hancock (1846), 2 C. B. 830. (m) Per Lord Kenyon, C. J., Webb v. Russell (1789), 3 T. R. 393, 402; 1 R. R. 725. (n) Spencer's case (1583), 5 Co. 16 a. ; 1 Sm. L. C. (0) Ib.; Shep. Touch. 176. (p) See 2 Wms. Saund. 367 a. |