Hughes v. McElwee

It is a maxim of equity, that equity regards substance rather than form. In form, defendant loaned money to plaintiff under her promise to repay. In reality, the money was turned over to plaintiff — not for her use in any particular — but for the express purpose of delivery to defendant's own judgment creditor in payment of defendant's own obligation. Thus the plaintiff was not actually a borrower from defendant but merely his bailee or agent. Her promise, in fact, was not to repay defendant but to reimburse him. As such, the promise was entirely gratuitous. A valuable consideration is not necessary to support an executed gift; so plaintiff is not entitled to recover the $700.00 she has already bestowed on defendant. But an executory promise not supported by a legal consideration is unenforceable. Gooch v. Gooch, 70 W. Va. 38, 43, 73 S.E. 56, 37 L.R.A. (N.S.) 930. Therefore, I am of opinion that plaintiff should be relieved from further payment on her voluntary promise.

Judge Maxwell authorizes me to say that he concurs in this dissent.