Clarke v. McFarland's Ex'rs

• Decision Date: 06 April 1837
• Citation: 35 Ky. 45
• Parties: Clark v. McFarland's Executors.
• Court: Kentucky Court of Appeals

35 Ky. 45

Clark v. McFarland's Executors.

Court of Appeals of Kentucky.

April 6, 1837

FROM THE CIRCUIT COURT FOR FRANKLIN COUNTY.

Messrs Sanders and Depew for plaintiff.

Mr Crittenden for defendants.

OPINION

ROBERTSON CHIEF JUSTICE

Matilda McFarland Clarke, an infant, suing by her next friend William Duncan, filed a declaration in assumpsit, against John McFarland Ferguson, administrator, and Mary Ann McFarland, administratrix, of John McFarland deceased--averring that, she being the illegitimate child of the intestate, and her mother being about to institute proceedings against him for maintenance, he agreed with the mother, in consideration of her promise to forbear, and also to keep, and nurse, and labor for, the plaintiff, that he would, from time to time, make such auxiliary contributions, in property and money, as might become necessary to " support" herself and the plaintiff " in comfort," and moreover, at the same time and for the same consideration, fortified by his moral obligation, he promised the mother, that he would " secure and pay" to their daughter Matilda, the plaintiff, whenever requested, the sum of ten thousand dollars; and averring, also that, although the mother had faithfully observed and performed all that she had undertaken to abstain from and to do, nevertheless the intestate had not, in his lifetime, paid or secured to the plaintiff, the ten thousand dollars, or any part thereof, and that his representatives, though specially requested, had refused to do so since his death and their qualification.

The declaration.

The Circuit Court having sustained a demurrer to the declaration, this writ of error is brought to reverse the judgment in bar of the action.

Demurrer and questions for decision.

As the declaration is undoubtedly good in other respects, we shall consider only the two objections to it which have been urged in argument; first--that the plaintiff is not the proper person to sue; and, second--that the consideration, as alleged, is not sufficient to render the promise for the ten thousand dollars, enforcible by law.

First. Although the general rule, as stated by Mr. Chitty, in his treatise on Pleading (first volume, page 4,) seems to import that a verbal promise to one, to pay to another, may, under all circumstances, be enforced by an action in the name of the payee, whenever, as between the contracting parties, there is a legal obligation; yet, we think that both authority and principle require that the plaintiff should not be a stranger to the consideration. 1 Comyn on Contracts, 26 Flatbush Ed. of 1809; Dutton and wife v. Poole, 2 Levinz, 210; 1 Vent. 318, argued, and same, 332, reconsidered and decided; 1 Strange, 592: 1 Bos. and Pul. 101. n. c.; Pigot v. Thompson, 3 Ib. 149, and notes, and Schemerhorn v. Vanderheyden, 1 Johnson's Repts. 140.

A verbal promise made by one party to another, that the promiser will pay to a third party, may be enforced by action in the name of the latter, whenever, as between the contracting parties, there is a legal obligation, and the payee was not a stranger to the consideration.

In this case, according to the declaration, there was no binding consideration between the plaintiff and the intestate promisor; for it is well settled that, neither natural affection, nor the moral duty arising from the relation between them, is a sufficient consideration to impart to a verbal promise a legal obligation. Though it is said, and truly, that a moral obligation may be an effectual consideration for a promise, yet it is not every such obligation that will be so availing. In Pigot v. Thompson, supra, the annotator, after collating British cases on this point, says, " An express promise, therefore, as it should seem, 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 law, though not barred by any legal maxim or statute provision." But the rule, thus defined, is, in our opinion, too comprehensive, and not sufficiently qualified and specific. The true doctrine, as we understand it, may be found in the text in Chitty on Contracts, illustrated by the cases there cited; and is this: that, to be a sufficient consideration for an express promise, a moral obligation must be of that kind which has been superinduced by the fact, that the promiser had received something valuable from the promisee, or had been the cause of some loss to him, for which the law did not imply a promise which it would enforce.

The natural affection and moral duty arising from the connection between a father and his illegitimate child, do not constitute a sufficient consideration to...