it is but reasonable to require that there should be an express understanding between them to that effect. That is what is meant by the distinction between an express and an implied contract; and that does not mean a bargain in so many words to pay so much money weekly; but the recognition of this kind of understanding between them, as the admission of the party that he was a boarder and not a guest; the payment of money as board, etc.

We therefore express the opinion, that unless such an understanding or agreement existed between the father and his son-in-law, as a matter of contract, the plaintiff cannot recover in this case.

2. If these parties lived together without such understanding, but upon the expectation or promise of a gratuity, by way of gift or present, the plaintiff could not recover such gratuity, in an action.

3. But it is further alleged, on the defendant's part, that if any contract had been proved to pay board, such contract was made by Phillips when he was under age and did not bind him. That is the case with the general contracts of minors. Being regarded by the law as infants, until the age of twenty-one, such persons are incapable of making general contracts; but there are certain contracts, which, from necessity, they are allowed to make, and that is, for necessaries for themselves and family. The same necessity exists as to the family of an infant; and if old enough to contract marriage, an infant is liable on contracts for the necessary board and lodging of his wife and children. And if such liabilty exists, it may be enforced against the infant's estate, though he die under age.

AN INFANT IS LIABLE FOR A TORT COMMITTED IN VIOLATION OF HIS CONTRACT

FREEMAN V. BOLAND

14 R. I. 39 (1882)

Exceptions from Court of Common Pleas.

Action of trover by Freeman & Francis against Frank P. Boland for the alleged conversion of a horse and buggy. Verdict and judgment for plaintiffs. Defendant alleged exceptions.

DURFREE, C. J. The question here is whether an infant or minor who hires a horse and buggy to drive to a particular place, and who, having gotten them under the hiring, drives beyond the place or in another direction, is liable in trover for the conversion. We think he is. There are cases in which infancy has been held to be a good defense to an action ex delicto, for tort committed under contract or in making it. But

that is not this case.

The act here complained of was committed, not under contract, but by abandoning it, the bailment being thus determined. The contract cannot avail if the infant goes beyond the scope of it. The distinction may be subtle, but it is well settled, and has been often applied in support of actions precisely like this. It is true the contract must be generally put in proof to support the action, but this is because the tort, inasmuch as it is committed by departing from the terms of the contract, cannot be shown without showing the contract, and not because the contract is otherwise involved. Homer v. Thwing, 3 Pick. 492; Towne v. Wiley, 23 Vt. 355; Fish v. Ferris, 5 Duer, 49; Vasse v. Smith, 6 Cranch, 226; Green v. Sperry, 16 Vt. 390; Campbell v. Stakes, 2 Wend. 137; Add. Torts paragraph 1314. We understand that the defendant does not ask us to decide the questions raised by the other exception, the exceptions being waived. Exceptions overruled.

EFFECT OF INSANITY ON A CONTRACT

BEACH V. THE FIRST METHODIST EPISCOPAL CHURCH

96 Illinois, 177 (1880)

DICKEY, C. J., delivered the opinion of the Court.

The record shows that Lorenzo Beach had presented to him a subscription paper in the following words:

"Fairbury, February 14, 1874.

"We, the undersigned, agree to pay the sum set opposite our respective names, for the purpose of erecting a new M. E. Church in this place, said sums to be paid as foilows: One third to be paid when contract is let, one third when building is enclosed, one third when building is completed. Probable cost of said church from ten thousand dollars ($10,000) to twelve thousand dollars ($12,000)."

To which he attached and subscribed the following:

"Fairbury, 1874.

"Dr. Beach gives this subscription on the condition that the remainder of eight thousand dollars is subscribed.

"Lorenzo Beach,

$2,000."

On April 20, 1875, Lorenzo Beach was adjudged by the County Court of Livingston County, insane, and Thomas A. Beach and C. C.

Bartlett were appointed conservators of his person and property, and they continued to act as such until the death of Dr. Beach, which occurred in August, 1878.

cane.

Other subscriptions to the amount of $8,000 toward the building of this church were obtained. The construction of the church was begun about September of 1876; and while there is some dispute on the question of whether the church was ever fully finished, for the purposes of this opinion we will assume that the building was finished before June, 1877. About June, 1877, the church was badly damaged by a hurriIn September, 1877, when the trustees and members of the congregation were consulting as to the propriety of immediately repairing the same, one of the conservators of the person and property of Dr. Beach, being at the meeting, it is said, pledged the society the prompt and full payment of the unpaid residue of the subscription. This unpaid residue was about $666—the conservators having paid the first two installments of the subscription after the building of the church was begun.

This action was brought shortly before the death of Dr. Beach for the last installment of the subscription, $666. After his death his heirs were made parties, under a stipulation, and defended the action.

In the Circuit Court judgment was rendered for the unpaid one third of the subscription and costs. On appeal to the Appellate Court, that judgment was affirmed. The defendants appeal to this Court.

The subscription made by Dr. Beach was, in its nature, a mere offer to pay that amount of money to the church upon the condition therein expressed.

There is nothing in the record tending to show that the church, in this case, took any action, upon faith of this subscription, until after Dr. Beach was adjudged insane, or that the church paid money or incurred any liability. His insanity, by operation of law, was a revocation of the offer. In Pratt, Administratrix, etc., v. The Trustees of the Baptist Society of Elgin, 93, Ill. 475, this Court said, in relation to such a subscription: "The promise, in such a case, stands as a mere offer, and may, by necessary implication, be revoked at any time before it is acted upon. It is the expending of money, etc., or incurring of legal liability on the faith of a promise, which gives the right of action, and without which there is no right of action. Until acted upon, there is no mutuality, and, being only an offer, and susceptible of revocation at any time before being acted upon, it follows that the death of the promisor, before the offer is acted upon, is a revocation of the offer... The continuance of an offer is in the nature of its constant repetition, which, of course, necessarily requires some one capable of making a

repetition. Obviously this can no more be done by a dead man than a contract can, in the first instance, be made by a dead man."

The ground upon which the Court rested its judgment in the Pratt Case was the want of capacity on the part of the promisor to continue his promise or offer. The insanity of Dr. Beach rendered him, in law, as incapable of making a contract or of continuing or repeating an offer to the church as if he had been actually dead.

Conservators of the person and property of an insane man may perform personal contracts of their ward legally subsisting, under some circumstances; but in this case there was no contract between Dr. Beach and the church. The paper signed by Dr. Beach was of such a nature that no binding contract sprung therefrom until the church had accepted the same by incurring some legal liability, or expending money upon the faith of it. There being no binding contract upon Dr. Beach at the time that his conservators made the payments, they had no lawful authority to make the same, and the estate of Dr. Beach was not bound thereby.

The judgment of the Appellate Court in this case must be reversed and the cause remanded.

Judgment reversed.

DEFINITION OF CONSIDERATION

HAMER V. SIDWAY

124 N. Y. 538, 27 N. E. 256 (1891)

PARKER, J. The question which provoked the most discussion by counsel on this appeal, and which lies at the foundation of plaintiff's asserted right to recovery, is whether by virtue of a contract defendant's testator, William E. Story, became indebted to his nephew, William E. Story, II, on his twenty-first birthday, in the sum of $5,000. The trial court found as a fact that "on the 20th day of March, 1869,

William E. Story agreed to and with William E. Story, II that if he would refrain from drinking liquor, using tobacco, swearing and playing cards or billiards for money until he should become twenty-one years of age, then he, the said William E. Story, would at that time pay him, the said William E. Story, II, the sum of $5,000 for such refraining, to which the said William E. Story, II agreed," and that he "in all things fully performed his part of said agreement." The defendant contends that the contract was without consideration to support it, and therefore invalid. He asserts that the promisee, by refraining from the use of liquor and tobacco, was not harmed, but benefited; that that which he did was best for him to do, independently of his uncle's promise, and

insists that it follows that, unless the promisor was benefited, the contract was without consideration—a contention which, if well founded, would seem to leave open for controversy in many cases whether that which the promisee did or omitted to do was in fact of such benefit to him as to leave no consideration to support the enforcement of the promisor's agreement. Such a rule could not be tolerated, and is without foundation in the law. The Exchequer chamber in 1875 defined "consideration" as follows; "A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other." Courts "will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, foreborne, or suffered by the party to whom the promise is made as consideration for the promise made to him." Anson Cont. 63. "In general a waiver of any legal right at the request of another party is a sufficient consideration for a promise." Pars. Cont. 444. "Any damage or suspension, or forbearance of a right will be sufficient to sustain a promise." 2 Kent Comm. (12th ed.) 465. Pollock, in his work on contracts (p. 166), after citing the definition given by the exchequer chamber, already quoted, says; "The second branch of this judicial description is really the most important one. 'Consideration' means, not so much that one party is profiting, as that the other abandons some legal rights in the present, or limits his legal freedom of action in the future, as an inducement for the promise of the first." the facts before us, the promisee used liquor, and he had a legal right to do so. a period of years upon the strength of the for such forbearance he would give him $5,000. We need not speculate on the effort which may have been required to give up the use of those stimulants. It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle's agreement, and now, having fully performed the condition imposed, it is of no moment whether such performance actually proved a benefit to thepromisor, and the court will not inquire into it; but, were it a proper subject of inquiry, we see nothing in this record that would permit a determination that the uncle was not benefited in a legal sense. Few cases have been found which may be said to be precisely in point, but such as have been, support the position we have taken. In Shadwell v. Shadwell, 9 C. B. (N. S.) 159, an uncle wrote to his nephew as follows: "My dear Lancey: I am so glad to hear of your intended marriage

Now, applying this rule to tobacco, occasionally drank That right he abandoned for promise of the testator that