Cottage Street Methodist Episcopal Church v. Kendall , 121 Mass. 528 ( 1877 )

Gray, C. J.

The performance of gratuitous promises depends wholly upon the good will which prompted them, and will not be enforced by the law. The general rule is that, in order to support an action, the promise must have been made upon a legal consideration moving from the promisee to the promisor, Exchange Bank v. Rice, 107 Mass. 37. To constitute such consideration, there must be either a benefit to the maker of the promise, or a loss, trouble or inconvenience to, or a charge or obligation resting upon, the party to whom the promise is made.

A promise to pay money to promote the objects for which a corporation is established falls within the general rule. In every case, in which this court has sustained an action upon a promise of this description, the promisee’s acceptance of the defendant’s promise was shown, either by express vote or contract, assuming a liability or obligation, legal or equitable, or else by some unequivocal act, such as advancing or expending money, or erecting a building, in accordance with the terms of the contract, and upon the faith of the defendant’s promise. Fisher v. Ellis, 3 Pick. 322. Bryant v. Goodnow, 5 Pick. 228. Amherst Academy v. Cowls, 6 Pick. 427. Williams College v. Danforth, 12 Pick. 541. Thompson v. Page, 1 Met. 565. Ives v. Sterling, 6 Met. 310. Watkins v. Eames, 9 Cush. 537. Mirick v. French, 2 Gray, 420. Ladies' Collegiate Institute v. French, 16 Gray, 196. Athol Music Hall Co. v. Carey, 116 Mass. 471. To the latter class belongs Hanson Trustees v. Stetson, 5 Pick. 506, in which the subscriptions were to increase a ministerial fund, and the court “ found it a fact agreed ” (whether in the case stated, or by counsel at the argument, does not clearly appear by the report) “ that, in consequence of the accumulation of the fund by these means, the great purpose, viz., the settlement of a minister, has been effected.”

Where one promises to pay another a certain sum of money for doing a particular thing, which is to be done before the money is paid, and the promisee does the thing, upon the faith of the promise, the promise, which was before a mere revocable offer, thereby becomes a complete contract, upon a consideration moving from the promisee to the promisor; as in the ordinary case of an offer of reward. Freeman v. Boston, 5 Met. 56. Loring v. Boston, 7 Met. 409. Carr v. National Security Bank, 107 Mass., 45, 48.

The suggestion in 5 Pick. 508, substantially repeated in 6 Met. 316, and in 9 Cush. 539, that “ it is a sufficient consideration, that others were led to subscribe by the very subscription of the defendant,” was in each case but obiter dictum, and appears to us to be inconsistent with elementary principles. Similar promises of third persons to the plaintiff may he a consideration for agreements between those persons and the defendant; but as they confer no benefit upon the defendant, and impose no charge or obligation upon the plaintiff, they constitute no legal consideration for the defendant’s promise to him.

The facts in the present .case show no benefit to the defendant, and no vote or contract by the plaintiff, and, although it appears that the chapel was afterwards built by the plaintiff, it is expressly stated in the bill of exceptions that the learned judge who presided at the trial did not pass upon the question of fact whether the plaintiff had, in reliance upon the promise sued on, done anything or incurred or assumed any liability or' obligation. ■ It does not therefore appear that there was any legal consideration for the promise upon which this action is brought. Exceptions sustained.