Moore v. Elmer

• Citation: 180 Mass. 15,61 N.E. 259
• Parties: MOORE v. ELMER et al.
• Decision Date: 18 October 1901
• Court: United States State Supreme Judicial Court of Massachusetts

180 Mass. 15

61 N.E. 259

MOORE v. ELMER et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 18, 1901

COUNSEL

J. B. Carroll and W. H. McClintock, for plaintiff.

Charles W. Bosworth, for defendant.

OPINION

HOLMES, C.J.

It is hard to take any view of the supposed contract in which, if it were made upon consideration it would not be a wager. But there was no consideration. The bill alleges no debt of Elmer to the plaintiff prior to the making of the writing. It alleges only that the plaintiff gave him sittings at his request. This may or may not have been upon an understanding or implication that he was to pay for them. If there was such an understanding it should have been alleged or the liability of Elmer in some way shown. If, as we must assume and as the writing seems to imply, there was no such understanding, the consideration was executed and would not support a promise made at a later time. The modern authorities which speak of services rendered upon request as supporting a promise must be confined to cases where the request implies an undertaking to pay, and do not mean that what was done as a mere favor can be turned into a consideration at a later time by the fact that it was asked for. See Langd. Cas. Cont. § 92 et seq.; Chamberlin v. Whitford, 102 Mass. 448, 450; Dearborn v. Bowman, 3 Metc. 155, 158; Johnson v. Kimball, 172 Mass. 398, 400, 52 N.E. 386.

It may be added that even if Elmer was under a previous liability to the plaintiff it is not alleged that the agreement sued upon was received in satisfaction of it, either absolutely or conditionally, and this again cannot be implied in favor of the plaintiff's bill. It is not necessary to consider what further difficulties there might be in the way of granting relief.

Bill dismissed.