must have the renewed consent of the person who made the offer" (a).

assignable.

The offer of a contract can be accepted only by the party offer not to whom it is proposed, and cannot be assigned by him to another without the consent of the proposer. "In the simple case of an offer by A. to sell to B., an acceptance of the offer by C. can establish no contract with A.” (b). The. defendant sent a written order for goods addressed to a cer tain person, and the plaintiff, who had succeeded to the business of that person, executed the order without giving notice to the defendant that the goods were not sent by the person to whom the order was addressed; it was held that there was no contract between them (c).

arising

derations.

The process of agreement on which the contract is founded Contracts may be effected in the following manner. The offer of a con- upon exetract may be made in the form of a request to perform the cute consi consideration, which may be accepted by a performance of the consideration according to the request; or the offer may be made in the form of an offer of the consideration for acceptance, which may be agreed to by accepting the consideration offered. Contracts thus formed are described as arising upon executed considerations: in the one case the contract is formed by a consideration executed upon request, in the other case by the acceptance of an executed consideration.

A rule has been laid down by some writers as of universal application respecting contracts arising from executed considerations, namely, that an executed consideration will not support a promise unless the consideration was moved by a previous request. But it is also laid down by the same writers, that a previous request is implied by law, where a contract arises from the acceptance of an executed consideration. The implied request, here intended, is not an inference of fact like the implied agreements mentioned

(a) Sheffield Canal Co. v. Sheffield & Rotheram Ry. Co., 3 Railway Cases, 121, 132; Hyde v. Wrench, 3 Beav. 334; Honeyman v. Marryat, 21 Beav. 14.

(b) See Meynell v. Surtees, 3 Sm. & Gif. 101, 117.

(c) Boulton v. Jones, 2 H. & N. 564; cited ante, p. 16.

Contracts

arising

deration executed

upon request.

above (a); but it is an implication of law only, and in point of fact is a pure fiction. The use made of this fiction, and apparently the only use, is to preserve the universality of the above rule, that the executed consideration must be moved by a previous request (b). With the assistance of this fictitious request it is seen that all agreements arising from an executed consideration are reducible to the one form of a request to execute the consideration, followed by the execution of it according to the request; but if the fictitious request is discarded, they will be found in fact to appear in the two forms above given of a consideration executed upon a request, and an acceptance of an executed consideration.

Where a request to perform the consideration is made in upon consi- a manner or in terms importing a promise to pay for its performance, the promise may be accepted and rendered. binding by the performance of the request, as where work is done, or services are rendered, or money is paid by one person at the request of another, with the intention that they shall be paid for. In such cases a valid contract arises to pay for them.

In the leading case of Lampleigh v. Braithwait (c) the facts, as stated in the declaration, were that the defendant having committed a felony requested the plaintiff to labour and do his endeavour to obtain his pardon from the King, whereupon the plaintiff did by all the means he could and by many days? labour do his endeavour to obtain the King's pardon; and afterwards, in consideration of the premises, the defendant promised the plaintiff to pay him. After verdict for the plaintiff it was moved, in arrest of judgment, that the consideration was passed before the promise was given, and therefore the promise was void as having been given without a consideration; but the Court held that a valid contract was created by the request of the plaintiff's services and the rendering of the services in pursuance of the request. The Court is further reported to have agreed "that a mere voluntary courtesy will not have a considera

(a) See ante, p. 11.

(b) Chit. Contr. 5th ed., 57, 58; Smith's Contr., 3rd ed., 156, 160; notes to Lampleigh v. Brathwait, 1

Smith's L. C., 5th ed., 135; Fisher v. Pyne, 1 M. & G. 265, n. (b) cited post, p. 26.

(c) Hobart, 105; 1 Smith, L. C., 5th ed., 135.

tion to uphold an assumpsit, but if that courtesy were moved by a suit or request of the party that gives the assumpsit it will bind." Accordingly, wherever work is done or services rendered by one person at the request of another, provided such work or services are not asked for and performed as a gratuitous favour, a contract is formed to pay the value (a).

A contract of guarantee is usually made in the form of a request or offer, acceded to by performance. A person says to another, "If you will employ this man as your agent for a time, I will be responsible for all such sums as he shall receive during that time and neglect to pay over to you." The party indemnified is not therefore bound to employ the person designated by the guarantee, but if he do employ him then the guarantee attaches and becomes binding on the party who gave it (b). So, contracts of forbearance are commonly made in the form of a request of forbearance upon certain terms. The creditor is not bound to forbear, but if he does forbear as requested, he becomes entitled to exact the terms upon which the forbearance was asked (c).

A common example of this mode of contracting occurs upon the payment of money by one person at the request of another. If one requests another to pay money for him, in a manner importing an undertaking to repay it, the amount paid becomes a debt due to the party paying from him at whose request it is paid,-the request to pay and the payment according to the request forming a contract to pay the amount, which is technically described in law as a debt "for money paid by the plaintiff for the defendant at his request" (d). Money paid by the plaintiff, against the payment of which the defendant has agreed to indemnify him, may in general be recovered by the plaintiff from the defendant as being money paid at his request, the indemnity being treated as equivalent to a request (e). Where the defendant

(a) See Jewry v. Busk, 5 Taunt.

302.

(b) Per Parke, B., Kennaway v. Trelearan, 5 M. & W. 498, 501; and see Mills v. Blackall, 11 Q. B. 358, 366; Offord v. Davies, 12 C. B. N. S. 748; 31 L. J. C. P. 319; West

head v. Sproson, 6 H. & N. 728; 30 L. J. Ex. 265.

(c) Morton v. Burn, 7 A. & E. 19. (d) Brittain v. Lloyd, 14 M. & W. 762; Lewis v. Campbell, 8 C. B. 541. (e) Westropp v. Solomon, 8 C. B. 345, 369; Lewis v. Campbell, supra.

Contracts arising

upon ac

executed

tion.

requested the plaintiff to bring an action in a matter in which the defendant was interested, and the plaintiff incurred costs in so doing, he was held entitled to recover the amount as money paid at the request of the defendant (a). Where the plaintiff has been compelled to pay an accommodation bill accepted by him for the accommodation of the defendant, the payment may be considered as made at the request of the defendant, and may be recovered as money paid at his request (b).

If a consideration is offered or performed in a manner importing the intention of being paid for it, the acceptance of ceptance of the consideration imports a promise to pay for it on the considera- terms of the offer, as where goods are offered for sale by the plaintiff and accepted by the defendant, or where money is offered on loan by the plaintiff and accepted by the defendant. A previous request on the part of the promiser to perform the consideration is here immaterial, the acceptance of it showing a sufficient agreement on his part to support a contract.

Hence, in pleading a contract of this kind, the allegation of a previous request, though formerly usual, is inartificial; such a request need neither be alleged or proved. The following observations of Serjeant Manning on this subject, have been pronounced by Parke, B., to be perfectly correct (c):-" The statement, according to modern practice, of the accrual of a debt for, or the making of a promise for the payment of the price of goods sold and delivered, or for the repayment of money lent, as being in consideration of goods sold and delivered, or money lent to the defendant, at his request, is conceived to be an inartificial mode of declaring. Even where the consideration is entirely past, it appears to be unnecessary to allege a request, if the act stated as the consideration cannot from its nature have been a gratuitous kindness, but imports a consideration per se; it being immaterial to the right of action, whether the bargain, if actually

(a) Bailey v. Haines, 13 Q. B. 815, 832.

(b) Garrard v. Cottrell, 10 Q. B. 679; and see Sleigh v. Sleigh, 5 Ex.

514. And see post, p. 43.

(c) Per Parke, B., Victors v. Davies, 12 M. & W. 758, 759, citing the note to Fisher v. Pyne, 1 M. & G. 266.

concluded and executed, or the loan, if made, and the monies actually advanced, was proposed and urged by the buyer or by the seller, by the borrower or by the lender."

ance of con

A mere assent to or acquiescence in the performance of Contracts implied the consideration may be sufficient to import an agreement from assent to pay for it. Thus, where the plaintiff, a surgeon, attended to pr a pauper belonging to a parish of which the defendant was sideration. overseer, and therefore legally bound to supply the pauper with medical attendance, it was held that the knowledge of the overseers of the plaintiff's attendance, and their allowing him to continue his attendance after such knowledge, was equivalent to a request to give such attendance and imported an agreement to pay for it (a). So, where the plaintiff, a surgeon, had attended a pauper belonging to the parish of which the defendant was overseer, and the latter requested the plaintiff to make out his bill to the parish and said that he should be paid, the defendant was held liable, Bayley, J., saying, "The conduct of the defendant as the overseer of the parish amounted to an acknowledgment on his part that the plaintiff had attended at the defendant's wish, and upon his responsibility" (b).

In the above cases the consideration performed by the plaintiff, the surgeon, discharged the defendant, the overseer, from a legal duty, so that he in fact received the benefit of the performance, a circumstance which would greatly strengthen the inference of a promise to be drawn from his knowledge and acquiescence. But in the case of necessaries supplied to a child with the knowledge of the father, but without his order or authority, there being no legal duty in the father to maintain his child from which he is thereby relieved, it is held that no inference of a promise to pay for the necessaries can be drawn only from his knowledge of the supply. The mere moral duty of the father to maintain his child affords no inference of a legal promise to pay his debts. In order to bind a father in point of law

(a) Lamb v. Bunce, 4 M. & S. 275; Paynter v. Williams, 1 C. & M. 810; and see Tomlinson v. Bentall, 5 B. & C. 738.

(b) Wing v. Mill, 1 B. & Ald.

104.