Kennedy's Executors v. Ware
| Decision Date | 01 January 1845 |
| Citation | 1 Pa. 445 |
| Parties | CATHARINE and MADISON KENNEDY, Executors of ISAAC KENNEDY, deceased, Plaintiffs in error, who were Defendants below, v. SAMUEL WARE, Defendant in error, who was Plaintiff below. |
| Court | Pennsylvania Supreme Court |
Galbraith, for plaintiff in error, cited on the first point Tidd on Awards, 16; Chitty on Contracts, 615. As to the measure of damages, 3 Watts & Serg. 563 — 566; 2 Watts, 433. On the second point, 5 Watts, 368; 10 Watts, 195, 203; 3 Penna. Rep. 358, 359; 10 Watts, 54.
Babbit, contrà, 7 Cowen, 681; Chitty on Contracts, 51.
An equitable assignment of a chose in action is said by Mr. Butler (Co. Lit. 232 b, note 1) to be a declaration of trust with an agreement to permit the assignee to sue in the assignor's name. The contract being consequently executory, must have a consideration to support it, without which equity would no more execute it than the law would make the breach of it a subject of compensation. It was indeed said, in Carteret v. Paschall, 3 P. Williams, 199, that a parol contract might be good without consideration, though not to bar a wife's right of survivorship by the assignment of her chose in action. But the law is decidedly settled otherwise by Robinson v. Vavasor, Vin. Abr. tit. Assignment, D., case 29; Crouch v. Martin, 2 Vern. 595; Suffolk v. Greenville, 3 Chan. Rep. 90; Whitehill v. Wilson, 3 Penna. Rep. 413; and a dictum of Lord Keeper Bridgeman, 2 Freem. 145. What is the proper consideration? Consanguinity is sufficient to raise a use; but that it is not a consideration for an assignment like the present, is shown by Bret v. J. S. and wife, Cro. Eliz. 755, where it was held that natural affection is not a sufficient consideration for an assumpsit to ground an action. Harford v. Gardener, 2 Leon. 30; Best v. Jolly, 1 Sid. 38, and Butcher v. Andrews, Carth. 446, are to the same effect. It was indeed said by Lord Mansfield and Mr. Justice Buller, in Hawkes v. Sanders, Cowp. 289, and repeated by Lord Mansfield in Freeman v. Fenton, Cowp. 544, "that a legal or equitable duty is a sufficient consideration for an actual promise; that when a man is under a moral obligation which no court of law or equity can enforce and he promises, the honesty and rectitude of the thing is a consideration:" And it may be said that a man is morally bound to nourish and provide for his own children. But it is shown by a masterly review of all the cases in a note to Wennall v. Adley, 3 Bos. & Pull. 249, that Lord Mansfield's principle was intended for cases in which the promisor has received an actual benefit, but is protected from liability for it by some statute or stubborn rule of law. All the cases put by him for the sake of illustration are certainly of that stamp. "Indeed Lord Mansfield appears," adds the annotator, "to have used the term moral obligation, not as expressive of any vague or undefined...
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