The opinion of the court was delivered by
Mr. Chief Justice MoIver.
1 This was an action brought by the plaintiff, as administratrix of L. B. Cline, deceased, to recover a certain sum of money for which the defendant had executed her note to said Cline. „The execution of the note was admitted by the defendant, but she set up three defences: 1st. That she was a married woman at the time that the contract was executed, and she had no power to make such a contract. 2d. That there was no consideration for the contract evidenced by the note. 3d. That the note was signed under duress. The third defence was very projierly abandoned at the trial, as there was no evidence to sustain it. As to the first defence, inasmuch as the undisputed facts show that the note was given for a bill of lumber furnished by Cline and [330] actually used in the construction of a house on defendant’s land, which was her separate estate, it is difficult to see how such a defence could be sustained.
So that, as it appears to us, the only real controversy in the case arises out of the second defence, was there any consideration for the note? Fora proper understanding of this question a brief statement of the facts is necessary. It appears that the defendant, being desirous of having a house built upon her separate estate, entered into some arrangement with the firm of Gilreath & Harris (the latter being the husband of defendant), who were engaged in the business of furnishing building materials, the nature of which was not very clearly disclosed by the testimony. The undisputed facts are, however, that the lumber for which the note was given was furnished by Cline and used in the construction of'defendant’s house, and the bill for the same was charged to the defendant on the books of Cline. After the lumber was furnished and so used, Cline demanded payment from defendant, who declined to pay unless Cline would deduct the amount of an account which Gilreath & Harris held against Cline, which deduction Cline declined to make, alleging that such account should be set off against a claim which he held againsi another firm of which Gilreath was a member. Whereupon, under a threat from Cline that he would file a mechanic’s lien, the defendant signed the note in controversy.
Under the charge of the Circuit Judge (which, with the exceptions, should be incorporated in the report of the case), the jury found a verdict for the plaintiff, and defendant appeals upon the several grounds set out in the record. Without considering these grounds seriatim, we propose to consider what we understand to be the several questions made thereby. Inasmuch as there was no evidence that the lumber was ever charged to Gilreath & Harris on the books of Cline, but, on the contrary, it was charged to the defendant, and no evidence that Gilreath & Harris were ever held by Cline to be liable to him, the question whether the defendant, being a married woman, could assume the payment of a debt due by a third person (Gilreath & Harris), even though the debt was contracted for [331] articles used in the construction of a house erected on defendant’s separate property and for her use, cannot properly arise in this case, and need not, therefore, be considered.
2 Granting, for the sake of the argument, that Gilreath & Harris, without previous authority from defendant, had ordered the lumber from Cline, we see no reason why the defendant could not, after receiving the benefit of the lumber, adopt the previously unauthorized act of Gilreath & Harris, and assume the payment for the materials used for the benefit of her separate estate; and especially would this be so in a case like this, where the undisputed testimony shows that the lumber was charged to her and not to Gilreath & Harris, thereby demonstrating that the credit was extended to her and not to Gilreath & Harris. It is very true, that if Gilreath & Harris, without authority, ordered the lumber, the defendant would have been under no obligation, either legal or moral, to accept the lumber, but might with perfect propriety have repudiated the unauthorized act of Gilreath & Harris. But when she accepted the lumber and allowed it to be used in the construction of the building which she desired constructed on her separate estate, she thereby assumed at least a moral obligation to pay for the same, and when by her subsequent express promise, as evidenced by the note in question, she agreed to pay the amount of the lumber bill, she unquestionably became legally liable therefor.
3 It is earnestly urged, however, that a mere moral obligation is not sufficient to constitute a valid consideration for an agreement to pay money, unless such moral obligation rests upon a previous legal obligation, the power to enforce which has been lost by reason of some positive rule of law. It must be admitted that the weight of modern authority elsewhere does seem to support the rule invoked. 1 Pars. Con., 434; 3 Am. & Eng. Enc. Law, 840. But the distinguished author first cited, who states the modern rule as follows: “A moral obligation to pay money or to perform a duty is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforcible at law, but for the interference of some rule of law. [332] Thus a promise to pay a debt contracted during infancy, or barred by the statute of limitations. or bankruptcy, is good, without other consideration,” is bound to admit that the modern rule is not “very creditable to the common law.” Both of these authors admit that the rule was originally otherwise. The new departure, as it may be called, seems to rest upon a learned note to the case of Wennal v. Adney, 3 Bos. & Pul., at page 249. It seems to me, however, that a more correct view of the law is presented in a note to the case of Comstock v. Smith, 7 Johns., at page 89.
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The opinion of the court was delivered by
Mr. Chief Justice MoIver.
1 This was an action brought by the plaintiff, as administratrix of L. B. Cline, deceased, to recover a certain sum of money for which the defendant had executed her note to said Cline. „The execution of the note was admitted by the defendant, but she set up three defences: 1st. That she was a married woman at the time that the contract was executed, and she had no power to make such a contract. 2d. That there was no consideration for the contract evidenced by the note. 3d. That the note was signed under duress. The third defence was very projierly abandoned at the trial, as there was no evidence to sustain it. As to the first defence, inasmuch as the undisputed facts show that the note was given for a bill of lumber furnished by Cline and [330] actually used in the construction of a house on defendant’s land, which was her separate estate, it is difficult to see how such a defence could be sustained.
So that, as it appears to us, the only real controversy in the case arises out of the second defence, was there any consideration for the note? Fora proper understanding of this question a brief statement of the facts is necessary. It appears that the defendant, being desirous of having a house built upon her separate estate, entered into some arrangement with the firm of Gilreath & Harris (the latter being the husband of defendant), who were engaged in the business of furnishing building materials, the nature of which was not very clearly disclosed by the testimony. The undisputed facts are, however, that the lumber for which the note was given was furnished by Cline and used in the construction of'defendant’s house, and the bill for the same was charged to the defendant on the books of Cline. After the lumber was furnished and so used, Cline demanded payment from defendant, who declined to pay unless Cline would deduct the amount of an account which Gilreath & Harris held against Cline, which deduction Cline declined to make, alleging that such account should be set off against a claim which he held againsi another firm of which Gilreath was a member. Whereupon, under a threat from Cline that he would file a mechanic’s lien, the defendant signed the note in controversy.
Under the charge of the Circuit Judge (which, with the exceptions, should be incorporated in the report of the case), the jury found a verdict for the plaintiff, and defendant appeals upon the several grounds set out in the record. Without considering these grounds seriatim, we propose to consider what we understand to be the several questions made thereby. Inasmuch as there was no evidence that the lumber was ever charged to Gilreath & Harris on the books of Cline, but, on the contrary, it was charged to the defendant, and no evidence that Gilreath & Harris were ever held by Cline to be liable to him, the question whether the defendant, being a married woman, could assume the payment of a debt due by a third person (Gilreath & Harris), even though the debt was contracted for [331] articles used in the construction of a house erected on defendant’s separate property and for her use, cannot properly arise in this case, and need not, therefore, be considered.
2 Granting, for the sake of the argument, that Gilreath & Harris, without previous authority from defendant, had ordered the lumber from Cline, we see no reason why the defendant could not, after receiving the benefit of the lumber, adopt the previously unauthorized act of Gilreath & Harris, and assume the payment for the materials used for the benefit of her separate estate; and especially would this be so in a case like this, where the undisputed testimony shows that the lumber was charged to her and not to Gilreath & Harris, thereby demonstrating that the credit was extended to her and not to Gilreath & Harris. It is very true, that if Gilreath & Harris, without authority, ordered the lumber, the defendant would have been under no obligation, either legal or moral, to accept the lumber, but might with perfect propriety have repudiated the unauthorized act of Gilreath & Harris. But when she accepted the lumber and allowed it to be used in the construction of the building which she desired constructed on her separate estate, she thereby assumed at least a moral obligation to pay for the same, and when by her subsequent express promise, as evidenced by the note in question, she agreed to pay the amount of the lumber bill, she unquestionably became legally liable therefor.
3 It is earnestly urged, however, that a mere moral obligation is not sufficient to constitute a valid consideration for an agreement to pay money, unless such moral obligation rests upon a previous legal obligation, the power to enforce which has been lost by reason of some positive rule of law. It must be admitted that the weight of modern authority elsewhere does seem to support the rule invoked. 1 Pars. Con., 434; 3 Am. & Eng. Enc. Law, 840. But the distinguished author first cited, who states the modern rule as follows: “A moral obligation to pay money or to perform a duty is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforcible at law, but for the interference of some rule of law. [332] Thus a promise to pay a debt contracted during infancy, or barred by the statute of limitations. or bankruptcy, is good, without other consideration,” is bound to admit that the modern rule is not “very creditable to the common law.” Both of these authors admit that the rule was originally otherwise. The new departure, as it may be called, seems to rest upon a learned note to the case of Wennal v. Adney, 3 Bos. & Pul., at page 249. It seems to me, however, that a more correct view of the law is presented in a note to the case of Comstock v. Smith, 7 Johns., at page 89.
All of the authorities admit that where an action to recover a debt is barred by the statute of limitations, or by a discharge in bankruptcy, a subsequent promise to pay the same can be supported by the moral obligation to pay the same, although the legal obligation is gone forever; and I am unable to perceive any just distinction between such a case and one in which there never was a legal, but only a moral, obligation to pay. In the one case, the legal obligation is gone as effectually as if it had never existed, and I am at a loss to perceive any sound distinction in principle between the two cases. In both cases, at the time the promise sought to be enforced is made, there is nothing whatever to support it except the moral obligation, and why the fact that, because in the one case there was once a legal obligation, which, having utterly disappeared, is as if it had never existed, should affect the question, I am at a loss to conceive. If; in the one case, the moral obligation, which alone remains, is sufficient to afford a valid consideration for the promise, I cannot see why the same obligation should not have the same effect in the other. The remark made by Lord Denman, in Eastwood v. Kenyon, 11 A. & E., 438, that the doctrine for which I am contending “would annihilate the ne: cessity for any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it,” is more specious than sound, for it entirely ignores the distinction between a promise to pay money which the promisor is under a moral obligation to pay and a promise to pay money which the promisor is under no obligation, either legal or moral, to pay. It seems to me that the cases relied upon to ' [333] establish the modern doctrine, so far as my examination of them has gone, ignore the distinction pointed out in the note to 7 Johns, above cited, between an express and an implied, promise resting merely on a moral obligation, for while snch obligation does not seem to be sufficient to support an implied promise, yet it is sufficient to support an express promise.
But, whatever may be the rule elsewhere, it seems to me that in this State the rule is, that “a moral obligation is a sufficient consideration to support an express assumpsit made after the obligation incurred. It is equivalent to a previous request. But it must be such an obligation as is denominated by moralists ‘perfect;’ an obligation of justice, and not of benevolence or piety merely.” McMorris v. Herndon, 2 Bail., 56. In that case, Harper, J., in delivering the opinion of the court, quotes with approval the following language used by Lord Mansfield in Hawkes v. Saunders, Cowp., 290: “Where a man is under a moral obligation which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration.” The case of McMorris v. Herndon has been expressly recognized in Lewis v. Lewis, 3 Strob., 532, and the same doctrine is announced in Glasgow v. Martin, 1 Strob., 89. These eases show clearly that the moral obligation resting upon the defendant to pay for the lumber used in the construction of her house constituted a sufficient consideration for her express promise to pay for the same, as evidenced by the note in question.
Under this view, it seems to us unnecessary to inquire more particularly into the other grounds of appeal.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.