Earle v. Coburn, 130 Mass. 596

Earle v. Coburn

130 Mass. 596

| Mass. | 1881

Lord, J.

This case cannot be distinguished in principle from Whiting v. Sullivan, 7 Mass. 107. In that case it was said, “ As *598the law will not imply a promise, where there was an express promise, so the law will not imply a promise of any person against his own express declaration; because such declaration is repugnant to any implication of a promise.” As applicable to that case and to the case at bar, this language is entirely accurate. There may be cases where the law will imply a promise to pay by a party who protests he will not pay; but those are cases in which the law creates a duty to perform that for which it implies a promise to pay, notwithstanding the party owing the duty absolutely refuses to enter into an obligation to perform it. The law promises in his stead and in his behalf. If a man absolutely refuses to furnish food and clothing to his wife or minor children, there may be circumstances under which the law will compel him to perform his obligations, and will of its own force imply a promise against his protestation. But such promise will never be implied against his protest, except in cases where the law itself imposes a duty; and this duty must be a legal duty. The argument of the plaintiff rests upon the ground that a moral duty is sufficient to raise an implied promise, as well as a legal duty. He cites no authority for this proposition, and probably no authority can be found for it. The common law deals with and defines legal duties, not moral. Moral duties are defined and enforced in a different forum. Under the particular circumstances of this, case, it would be futile to inquire what moral duties were involved, or upon whom they devolved. It is sufficient to say that no such legal duty devolved upon the defendant as to require him to pay for that for which he refused to become indebted. In Boston Ice Qo. v. Potter, 123 Mass. 28, the court refused to hold the defendant to an implied promise to pay for ice which he had received and consumed during a year or more; and this upon the ground that a promise will not- necessarily be implied from the mere fact of having derived a benefit. The cases arising in this country and in England are collated in the opinion in that case. Those cases, equally with Whiting v. Sullivan, ubi supra, sustain the ruling of the presiding judge in this case.

Judgment on the verdict.