Eycleshimer v. Van Antwerp

13 Wis. 546 | Wis. | 1861

By the Court,

DixoN, C. J.

The rules of law as to what constitutes a sufficient consideration to support a promise, are well settled. They are, that it must be some matter of benefit to him who makes the promise, or of loss or disadvantage to him to whom it is made; and in addition to this, it must appear that it arose or was moved at the express or implied request of the promisor. The question here is, whether the case made by the complaint comes within these rules. And we think it does. The expense and obligations incurred by Smith, the promisee, in the erection of the hotel, were such a loss and inconvenience to him as constitute a valid consideration, and the undertaking of the defendant to pay him the sum of money named, provided he would erect it within the time specified, was of itself, if not an express, at least an implied request to enter into and incur them. The promise was, in its very nature, a continuing request to Smith to subject himself to the losses and liabilities which, it was known to both parties, must ensue from tbe prosecution of an enterprise of tbe kind, and in tbe direct contemplation of wbicb it was made. And if it be admitted that tbe defendant might, at its inception, and before any work was done, have retracted it, for want of mutuality, yet, until be did so, it was good as a request, and after tbe expenses were incurred and tbe hotel built, it was too late for him to withdraw it. Smith must be presumed to have incurred tbe expense, in part at least, u]3on tbe faith of tbe request and promise; and after be has done so, it would be most unjust to allow tbe defendant to repudiate them, and refuse to reimburse him for moneys thus laid out.

This view of tbe question, we think, is fully sustained by tbe cases of Homes vs. Dana, 12 Mass., 196, and Trustees of Farmington Academy vs. Allen, 14 id., 172. In tbe former case, where certain persons agreed to lend to tbe editors of a newspaper tbe sums of money set against their respective names, tbe same to be paid to one of their number as agent, and such agent advanced money to tbe editors on tbe ground of tbe subscription, it was held be bad a right of action against a subscriber who refused to pay tbe sum be bad subscribed. Tbe decision was put upon tbe ground that, with tbe knowledge of tbe subscriber, tbe agent was led to confide in bis engagement, so far as to advance bis own money for him. In tbe latter case, a subscriber to a paper for raising a fund for tbe establishment of an academy, who was not thereby legally bound, was held liable to pay tbe trustees tbe sum subscribed, because when applied to for payment, be did not dissent, but paid a part, and because, without objection, be permitted tbe trustees to proceed in expending money on tbe faith of tbe supposed subscription. This, tbe court say, was expending money for him on bis implied request. In principle there can be no distinction between those cases and tbe present; and whether they be put upon tbe ground of an estoppel in pais, or an implied request, they are, in our opinion, equally sound and wholesome law.

Tbe order of tbe circuit court sustaining tbe demurrer to tbe complaint, is reversed, and tbe cause remanded for further proceedings according to law;