22 Cal. 86 | Cal. | 1863
The obtaining the judgment which was rendered in the case of Adams v. Lansing (17 Cal. 629) was a performance of the condition upon which the defendant’s promise to pay the five hundred dollars depended. It may be readily imagined that the defendant supposed the decree which was to be obtained would forever settle the title of the parties claiming under the “ will,” but that is not the thing specified in the written promise. That only requires that the decree in some case then pending, or thereafter to be instituted, should declare the sisters’ title to be void, and the sons’ title to be the only valid title under the “ will.” The Supreme Court in that case rendered a judgment that the plaintiff who claimed under the sisters had no title upon which he could recover, and that the defendant who claimed through the sons under the “ will ” had a title which entitled him to recover. This was, in effect and substance, a decree in that case that the sisters’ title was null and void, and that the title of the sons under the “ will” was the only valid title.
The promise was not a contract depending upon a mutual promise for a consideration. The doing of the thing specified constituted the consideration which made the promise binding. In the case of Train v. Gold (5 Pick. 380) the Court state the rule in these words : “ Thus, if A promises B to pay him a sunrof money if he will do a particular act, and B does the act, the promise thereupon becomes binding, although B at the time of the promise does not engage to do the act. In the intermediate time the obligation of
The argument that the promisees have done nothing in consequence of the promise, because they were already retained in the action by other parties, and were under obligation to render these services, is not valid. The complaint avers that the work was done in consideration of the promise. The answer denies only the doing of the work, and does not claim that it was done for any other person or for any other consideration. When the doing of the work was proved, the cause of action set forth in the complaint was proved under the issue presented by the answer.
Nor is the contract void as being contrary to the policy of any law of this State in regard to maintenance. That offense was created by statute in England in early times, in order to prevent great and powerful persons from enlisting in behalf of one party in a lawsuit, by which the opposite and feeble party would be oppressed and prevented from obtaining justice. It has been said by English Judges that under the enlightened and impartial administration of justice in later times the object of the law had ceased and the law itself had become nearly obsolete. It has been said in America that the law against maintenance was peculiar to early English society, and inapplicable to American society, and, therefore, that it would not exist here unless by statute enacted here. At an early day in the history of the State of New York a statute was enacted against maintenance. At the revision of the laws of that State in 1830, the revisors, hi a report to the Legislature, say: “ It is proposed to abolish the law of maintenance and to qualify that of champerty, by permitting mortgages of lands in dispute to raise money, under guards and restrictions which will prevent abuse,” and the mode adopted to “ abolish the law of maintenance ” was simply to omit enacting any statute upon the subject and repealing the old statute by which it was created or adopted. There was no special repeal of this old statute, but it was included in the general
Judgment affirmed.
