The gist of the action being the deceit in breaking a promise on the faith of which the plaintiff had been induced to part with his money or other property, it was obviously immaterial whether the promisor or a third person got the benefit of what the plaintiff gave up. It was accordingly decided, in 1520, that one who sold goods to a third person on the faith of the defendant’s promise that the price should be paid, might have an action on the case upon the promise.[1] This decision introduced the whole law of parol guaranty. Cases in which the plaintiff gave his time or labor were as much within the principle of the new action as those in which he parted with property. And this fact was speedily recognized. In Saint-Germain’s book, published in 1531, the student of law thus defines the liability of a promisor: “If he to whom the promise is made have a charge by reason of the promise,… he shall have an action for that thing that was promised, though he that made the promise have no worldly profit by it.”[2] From that day to this a detriment has always been deemed a valid consideration for a promise if incurred at the promisor’s request.[3]
Jealousy of the growing jurisdiction of the chancellors was doubtless a potent influence in bringing the common-law judges to the point of allowing the action of assumpsit. Fairfax, J., in 1481, advised pleaders to pay more attention to actions on the case, and thereby diminish the resort to Chancery;[4] and Fineux, C. J., remarked, after that advice had been followed and sanctioned by the courts, that it was no longer necessary to sue a subpœna in such cases.[5]
That equity gave relief, before 1500, to a plaintiff who had incurred detriment on the faith of the defendant’s promise, is reasonably clear, although there are but three reported cases. In one of
- ↑ Y. B. 12 H. VIII. 11, pl. 3.
- ↑ Doct. and Stud. Dial. 11. c. 24.
- ↑ Y. B. 27 H. VIII. 24, pl. 3; Webb’s Case (1578), 4 Leon. 110; Richards v. Bartlett (1584), 1 Leon. 19; Baxter v. Read (1585), 3 Dyer. 272, b. note; Foster v. Scarlett (1588), Cro. El. 70; Sturlyn v. Albany (1588), Cro. El. 57; Greenleaf v. Barker (1590), Cro. El. 193; Knight v. Rushworth (1596), Cro. El. 469; Bane’s Case (1611), 9 Rep. 93, b. These authorities disprove the remark of Mr. Justice Holmes (Common Law, 287) that “the law oscillated for a time in the direction of reward, as the true essence of consideration." In the cases cited in support of that remark the argument turned upon the point of benefit, as the only arguable point. The idea that the plaintiff in those cases had, in fact, incurred a detriment would have seemed preposterous. Professor Langdell’s observations (Summary of Contract, §64) are open to similar criticism.
- ↑ Y. B. 21 Ed. IV. 23, pl. 6.
- ↑ Y. B. 21 H. VII. 41, pl. 66.
