Story Case

Frank Johnson said to Eph Kilkot: "I'll give you five dollars when you dig the two post holes for the new gate I'm putting up." Eph responded,"All right, I will dig them".

The next day Johnson hired another man to dig the holes and Kilkot found the work already finished when he brought his tools; he sued Johnson for breach of promise. Johnson defended on the ground that his offer contemplated an act, that is, digging the post holes, as acceptance; and that he made no promise that he would allow Kilkot to dig the holes.

Is this defense good?

Ruling Court Case. Barnes Vs. Ferine, Volume 9 Barbour Reports (New York), Page 202

Barnes, as trustee of the First Presbyterian Church, brought this action against Perine on a subscription paper, which was in the following words:

"We, the subscribers hereto, agree to pay the sums set opposite our respective names, for the purpose of building a Presbyterian Church".

Perine subscribed $150. The church was erected with the knowledge and approval of Perine. When it had been completed and Perine was requested to pay the amount which he had promised, he refused to settle. Thereupon, this action was instituted against him for the recovery of the $150.

He defended that his promise to pay the $150 was without consideration; that the church did not accept his offer by a promise; and that the authorities of the church were never bound under any obligation to build.

Decision

In this case, when Perine made his promise, it might have been without consideration in that the church authorities were under no obligation to proceed with the erection of the church. His promise to pay, however, contemplated that it might be accepted by an act on the part of the authorities; that is, the act of building the church. This was done, and the erection is now a valuable consideration for, and makes binding the promise of Perine.

Mr. Justice Paige said in part: "It is not necessary that a consideration should exist at the time a promise is made. Thus, if A promise B to pay him a sum of money if he will do a particular thing or act, and B does the act before the revocation of the promise, the promise thereupon becomes binding, although B does not at the time of the promise engage to do the act. Intermediate between the promise and the performance of the act, the obligation of the promise is sus-pended".

Judgment was, therefore, given for Barnes.

Ruling Law. Story Case Answer

If one party promises to pay another a certain sum, provided that the other will do a certain act, until that act is done there is no contract. When the act is done, a unilateral contract exists, that is, one in which only one person is under obligation, the person who made the offer. The consideration consists of two parts, one a promise, the other an act.

In the Story Case, the promise of Johnson contemplated that it should be accepted by an act by Kilkot; until that act was performed, the promise of Johnson was without consideration, and he had the right to withdraw it at any time he chose. Therefore, after his withdrawal, he is not liable to Kilkot.