SCEVA v. TRUE.

(Supreme Judicial Court of New Hampshire, 1873. 53 N. H. 627.) Assumpsit for the value of the support furnished by the plaintiff's intestate, Enoch F. Sceva, to Fanny True, his sister-in-law, who was, and for more than a quarter of a century had been, so hopelessly insane as to have no reason or understanding. Prior to his death, August 11, 1822, William True, father of said Fanny and her sister Martha, wife of said intestate, owned a farm in Andover and Hill, with a house, barn, and outbuildings thereon, situate in said Andover. On May 25, 1822, in expectation of death, William True made the following disposition of his property: He gave, by an instrument in writing under seal, all his personal property, upon certain conditions and subject to certain. charges, to his widow, Betsey True, who died upon said premises in May, 1844, without remarrying. He also gave her on the same day, in the same way, "the use and occupation of said real estate, both of lands, buildings, and tenements, so long as she, the said Betsey, remains my widow." He also, by deed, conveyed on the same day one undivided half of all said real estate to each of said daughters. Said intestate carried on said premises in 1822, and married said Martha in December, 1823, and lived on said premises till about one month before his death. All the parties, save Fanny, treated said deeds and instru ments as valid, and supposed they were valid; and, aside from the time that the said defendant was away in insane asylums and infirmaries for treatment, all lived together on said premises in one family. till they died, or until said Enoch F. Sceva refused to support said Fanny longer; and she was taken away about said November 1, and when said Enoch F. Sceva left, the month prior to his death. Said Sceva took the entire charge of the premises, used the crops and the proceeds of the lumber, wood, and bark, sold off the whole farm for the common benefit of the family, and paid the taxes and other bills for the support and maintenance of the family.

No administration was ever had upon any part of the estate of said William True, nor was there any use or trust for the benefit of said Fanny. No attempt was ever made to make any contract with said Fanny about her support or anything else. No application was made for the appointment of a guardian in the interest of said Enoch F. Sceva, because of the opposition of his wife to any step looking to that end. She has been supported during said forty years by said Sceva, his wife, and her mother, out of the avails of said real estate taken as aforesaid, and out of their own funds. Since 1844 her chief support has been from said Sceva. Said intestate was worth nothing when he commenced on said farm, and died worth about $1,600.

The defendant moved to dismiss. For the purpose of raising questions of law, and no other, the parties agreed that the facts are as stated above, and the questions were reserved for the whole court. LADD, J. * * * We regard it as well settled, by the cases referred to in the briefs of counsel, * * * that an insane person, an idiot, or a person utterly bereft of all sense and reason by the sudden stroke of accident or disease, may be held liable, in assumpsit, for necessaries furnished to him in good faith while in that unfortunate and helpless condition. And the reasons upon which this rests are too broad, as well as too sensible and humane, to be overborne by any deductions

which a refined logic may make from the circumstance that in such cases there can be no contract or promise in fact-no meeting of the minds of the parties. The cases put it on the ground of an implied contract; and by this is not meant, as the defendant's counsel seems to suppose, an actual contract—that is, an actual meeting of the minds of the parties, an actual, mutual understanding, to be inferred from language, acts, and circumstances, by the jury, but a contract and promise, said to be implied by the law, where, in point of fact, there was no contract, no mutual understanding, and so no promise. The defendant's counsel says it is usurpation for the court to hold, as matter of law, that there is a contract and a promise, when all the evidence in the case shows that there was not a contract, nor the semblance of one. It is doubtless a legal fiction, invented and used for the sake of the remedy. If it was originally usurpation, certainly it has now become very inveterate, and firmly fixed in the body of the law. Suppose a man steals my horse and afterwards sells it for cash. The law says I may waive the tort, and recover the money received for the animal of him in an action of assumpsit. Why? Because the law, in order to protect my legal right to have the money, and enforce against the thief his legal duty to hand it over to me, implies a promise that is, feigns a promise, when there is none-to support the assumpsit. In order to recover, I have only to show that the defendant, without right, sold my horse for cash, which he still retains. Where are the circumstances, the language or conduct of the parties from which a meeting of their minds is to be inferred, or implied, or imagined, or in any way found by the jury: The defendant never had any other purpose but to get the money for the horse and make off with it. The owner of the horse had no intention to sell it, never assented to the sale, and only seeks to recover the money obtained for it to save himself from total loss. The defendant, in such a case, may have the physical capacity to promise to pay over to the owner the money which he means to steal; but the mental and moral capacity is wanting, and to all practical intents the capacity to promise according to his duty may be said to be entirely wanting, as in the case of an idiot or lunatic. At all events, he does not do it. He struggles to get away with the money, and resists with a determination never to pay if he can help it. Yet the law implies, and against his utmost resistance forces into his mouth a promise to pay.

So, where a brutal husband, without cause or provocation, but from wanton cruelty or caprice, drives his wife from his house, with no means of subsistence, and warns the tradesmen not to trust her on his account, thus expressly revoking all authority she may be supposed to have, as his agent, by virtue of the marital relation, courts of high authority have held that a promise to pay for necessaries furnished her while in this situation, in good faith, is implied by law against the husband, resting upon and arising out of his legal obligation to furnish her support.

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So, it was held that the law will imply a promise to pay toll for passing upon a turnpike road, notwithstanding the defendant, at the time of passing, denied his liability and refused payment. ** * In the recent English case of Railway Co. v. Swaffield, L. R. 6 Exch. 132, the defendant sent a horse by the plaintiffs' railway, directed to himself at S. station. On the arrival of the horse at S. station, at night, there was no one to meet it, and the plaintiffs, having no ac

commodation at the station, sent the horse to a livery stable. The defendant's servant soon after arrived and demanded the horse. He was referred to the livery stable keeper, who refused to deliver the horse, except on payment of charges, which were admitted to be reasonable. On the next day the defendant came and demanded the horse, and the station master offered to pay the charges and let the defendant take away the horse; but the defendant declined, and went away without the horse, which remained at the livery stable. The plaintiffs afterwards offered to deliver the horse to the defendant at S. without payment of any charges, but the defendant refused to receive it unless delivered at his farm, and with payment of a sum of money for his expenses and loss of time. Some months after, the plaintiffs paid the livery stable keeper his charges, and sent the horse to the defendant, who received it; and it was held that the defendant was liable, upon the ground of a contract implied by law, to the plaintiffs for the livery charges thus paid by them.

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The evidence of an actual contract is generally to be found either in some writing made by the parties, or in verbal communications which passed between them, or in their acts and conduct considered in the light of the circumstances of each particular case. A contract implied by law, on the contrary, rests upon no evidence. It has no actual existence; it is simply a mythical creation of the law. The law says it shall be taken that there was a promise, when, in point of fact, there was none. Of course this is not good logic for the obvious and sufficient reason that it is not true. It is a legal fiction, resting wholly for its support on a plain legal obligation, and a plain legal right. If it were true, it would not be a fiction. There is a class of legal rights, with their correlative legal duties, analogous to the obligationes quasi contractu of the civil law, which seems to lie in the region between contracts on the one hand and torts on the other, and to call for the application of a remedy not strictly furnished either by actions ex contractu, or by actions ex delicto. The common law supplies no action of duty, as it does of assumpsit and trespass; and hence the somewhat awkward contrivance of this fiction to apply the remedy of assumpsit where there is no true contract, and no promise to support it. All confusion in this matter might be avoided, as it seems to me, by a suitable discrimination in the use of the term "implied contract.' In the discussion of any subject there is always danger of spending breath and strength about mere words, as well as of falling into error when the same term is used to designate two different things. If the term "implied contract" be used indifferently to denote (1) the fictitious creation of the law spoken of above; (2) a true or actual, but tacit, contract-that is, one where a meeting of the minds or mutual understanding is inferred as a matter of fact from circumstances, no words, written or verbal, having been used; and (3) that state of things where one is estopped by his conduct to deny a contract, although, in fact, he has not made or intended to make one-it is not strange that confusion should result, and disputes arise, where there' is no difference of opinion as to the substance of the matter in controversy; whereas, were a different term applied to each-as, for example, that of legal duty to designate the first; contract, simply, to designate the second; and contract by estoppel, the third-this difficulty would be avoided. It would, of course, come to the same thing, in substance, if the first were always called an implied contract, while

the other two were otherwise designated in such way as to show distinctly what is meant. This is not always done, and an examination of our own cases would perhaps show that more or less confusion has arisen from such indiscriminate use of the term. A better nomenclature is desirable. But whatever terms are employed, it is indispensable that the distinction, which is one of substance, should be kept clearly in mind, in order that the principles governing in one class of cases may not be erroneously applied to another.

It by no means follows that this plaintiff is entitled to recover. In the first place, it must appear that the necessaries furnished to the defendant were furnished in good faith, and with no purpose to take advantage of her unfortunate situation. And upon this question the great length of time which was allowed to pass without procuring the appointment of a guardian for her is a fact to which the jury would undoubtedly attach much weight. Its significance and importance must, of course, depend very much on the circumstances under which the delay and omission occurred, all of which will be for the jury to consider upon the question whether everything was done in good faith towards the defendant, and with an expectation on the part of the plaintiff's intestate that he was to be paid.

Again, the jury are to consider whether the support for which the plaintiff now seeks to recover was not furnished as a gratuity, with no expectation or intention that it should be paid for, except so far as compensation might be derived from the use of the defendant's share of the farm. And upon this point the relationship existing between the parties, the length of time the defendant was there in the family without any move on the part of Enoch F. Sceva to charge her or her estate, the absence (if such is the fact) of an account kept by him wherein she was charged with her support and credited for the use and occupation of the land-in short, all the facts and circumstances of her residence with the family that tend to show the intention or expectation of Enoch F. Sceva with respect to being paid for her support-are for the jury. If these services were rendered, and this support furnished, with no expectation on the part of Enoch F. Sceva that he was to charge or be paid therefor, this suit cannot be maintained; for then it must be regarded substantially in the light of a gift actually accepted and appropriated by the defendant, without reference to her capacity to make a contract, or even to signify her acceptance by any mental assent.

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In this view, the facts stated in the case will be evidence for the jury to consider upon the trial; but they do not present any question of law upon which the rights of the parties can be determined by the court. Case discharged.

2. Consideration in Unilateral Contracts.

3. Performance of, or Promise to Perform, a Pre-existing Legal Duty. 4. Promises in the Nature of Gratuities.

5. Illusory Promises.

6. Promises to Pay for a Benefit Previously Received.

7. Sealed Instruments.

SECTION 1.-INTRODUCTION

We have observed that an offer and an acceptance of that offer, either express or implied, are requisites to the existence of a contract. It is possible, however for the parties to have arrived at an agreement through an offer and its acceptance under circumstances where no contract is created. There is a third requisite to the existence of a contract. That requisite is called consideration. The determination of the nature and characteristics of consideration calls for a re-examination of the offer and the acceptance from a somewhat different point of view. If A. says to B., "I will sell you, my bicycle for $25," and B. replies, "I accept your offer," common knowledge tells us that this sort of agreement is a contract. If we assume that consideration is necessary, we must infer that, whatever consideration may be, it must be present in this case. What is it, and how may we express, in general terms, what constitutes consideration? Before stating some of the definitions of consideration, let us inquire into a few other kinds of agreements. A. says to B., "I have made up my mind to give my horse to you, if you are willing to accept the gift." B. replies, "I shall be very glad to accept." A. later changes his mind and decides not to give the horse to B., and B. sues A. Scarcely any one would be surprised to learn that the law would not permit B. to recover. Why? The courts would say, "Because there was no consideration for A.'s promise." Again, suppose A. gives the horse to B. as a gift, and subsequently B. promises to pay A. $100 for the horse, and then repudiates the promise, and is sued by A. Would the courts enforce this promise? No; because there is no consideration for the promise. to pay the $100, although A. agrees to accept the money. Suppose a bank held M.'s note, and that, before maturity, the officers of the bank requested A. to indorse the note. Is A. bound? Would it make any difference if, at the time A. indorsed the note, the holder promised not to sue M. until six months after the date of maturity fixed in the note? Again, suppose A. offers to sell his automobile to B. for $1,000, but adds that it is to be understood. that, if he changes his mind within the next three days, the sale is not to be made, and B. accepts. Could B. sue A., if A., within the time specified, expressed his intention not to carry out the trans