Forbis v. Inman
31 P. 204
Or.
1892
Check Treatment
Moore, J.

Hill’s Code, § 581, makes the writ of review concurrent with an appeal. The plaintiffs could have taken an appeal or could have had the action of the justice’s court reviewed. They chose to take an appeal, and the only issue the circuit court could try on the appeal was the one raised in the justice’s court upon the demurrer: Hill’s Code, § 2130. The circuit court had no authority to allow an answer to be filed after the demurrer was overruled, as this would have changed the issue made in the justice’s court from one of law to that of fact: Currie v. Southern Pacific Co. 21 Or. 566 (28 Pac. Rep. 884). Under the statute as it now exists, a demurrer is a very dangerous pleading in a justice’s court, as the party aggrieved may take an appeal instead of review, and the circuit court can try nothing but the issues made in the justice’s court, and has no authority upon appeal to allow any change to be made in the issues, nor can it upon appeal remand the cause for further action to the justice’s court.

This disposes of all the questions presented in this appeal except the one raised in the justice’s court. Did the complaint state facts sufficient to constitute a cause of action? The gist of the action grows out of the request for the performance of the services and the *72promise to pay therefor. To make one liable upon such a contract, it is not enough to allege and show that the defendant had received a benefit, but it must appear in addition that the defendant had either requested the performance of the service, or that when he knew the service had been performed, he promised to pay for the same: Glenn v. Savage, 14 Or. 577 (15 Pac. Rep. 442). “As the law will imply a promise to pay from a previous request, so it will imply a request on proof of certain circumstances and the beneficial nature of the services rendered ” on the promise to pay for the same: Force v. Haines, 17 N. J. L. 412. Any act done for another without his request is deemed in law a voluntary courtesy, for which no action can be sustained. Such actions are founded upon contract, and there must have been a legal obligation to do the act on the part of the defendant, or the services must have been beneficial to Him, and a subsequent promise to pay, before any recovery can be had. Two of these three must always exist — legal obligation, beneficial service, or subsequent promise. If the defendant was not legally bound to do the thing himself, or the services were not beneficial, the subsequent promise would not make him liableif he was legally bound to do the act himself, and the services were not beneficial, or he did not subsequently promise to pay for the same, there could be no recovery. Necessaries furnished a minor constitute an exception to this universal rule. Many cases have been cited to support the theory that there was no consideration to support the alleged promise. In the case of Rohr v. Baker, 13 Or. 350 (10 Pac. 627), work had been done by mistake on Baker’s contract by Rohr, and this court held that there could be no recovery as there had been no previous request nor subsequent promise. Such was the decision in Dawson v. Dawson, 12 Ia. 513, and Bartholomew v. Jackson, 20 Johns. 28 (11 Am. Dec. 237). If the defendant derives no benefit from the transaction, there is no consideration for the subsequent promise: Frear v. Bardenburg, 5 Johns. 277 (4 Am. *73Dec. 356); Balcom v. Craggin, 5 Pick. 295. If it were intended at the time the services were rendered that they should be gratuitous, no subsequent promise would make the defendant liable: Allen v. Bryson, 67 Ia. 596 (25 N W. Rep. 820); Shepherd v. Young, 8 Gray, 152, (69 Am. Dec. 242.) Where there is no legal obligation, a subsequent promise will not make the defendant liable: Snevily v. Read, 9 Watts (Pa.), 402; Dearborn v. Bowman, 3 Met. 155; Mills v. Wyman, 3 Pick. 207. The rule may be formulated in the negative as follows: If the consideration be past and the party derives no benefit from it, or if he was not legally bound to pay for the services, or if the services were intended to be gratuitous at the time they were rendered, the subsequent promise, in the absence of a previous request, would be nudum pactum. The converse is also true. If the consideration be past and the party derives a benefit, or if he is legally bound to pay, the subsequent promise implies a previous request, the legal effect of which is the same as if it existed from the beginning, and the contract will be enforced.

Applying this rule to the complaint, does it state a sufficient consideration to support the alleged promise ? It states that the defendant received and retained the sixty dollars and thirty cents, the benefit of the labor, which was the consideration for the promise. “A consideration is some benefit or advantage accruing to the the party promising”: Buchanan v. International Bank, 78 Ill. 500. The complaint, having alleged that in consideration of plaintiffs having done the labor and furnished the material by mistake on defendant’s contract, and defendant having received the benefit thereof and retained the same, had thereafter expressly promised to pay the amount to plaintiff, which the demurrer admits, thereby raised an implied request on the part of the defendant to the plaintiff to do the work and furnish the material, is sufficient.

The complaint having stated sufficient facts to constitute a cause of action against the defendant, there was *74no error in overruling the demurrer. It follows that the judgment of the circuit court should be affirmed.