Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise

Babbitt, Bruce C.

English

University of Montana

Montana Law Review Volume 8 Issue 1 Spring 1947 Article 6 1947 Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise? Bruce C. Babbitt Follow this and additional works at: https://scholarworks.umt.edu/mlr  Part of the Law Commons Let us know how access to this document benefits you. Recommended Citation Bruce C. Babbitt, Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?, 8 Mont. L. Rev. (1947). Available at: https://scholarworks.umt.edu/mlr/vol8/iss1/6 This Note is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Montana Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. MONTANA LAW REVIEWCONTRACTS: IS A PROMISE TO PERFORM THATWHICH IS DUE A THIRD PARTY SUFFICIENTCONSIDERATION TO SUPPORT A PROMISE?From a dictum in the recent decision of the Montana Su-preme Court in the case of Hewittv. Novak' an interesting studyof the sufficiency of consideration arises. Among other problemsinvolved in the case, the court considered the question ofwhether a promise to do that which a person is already obligatedto a third party to do is sufficient consideration for a promisein return.In that case the suit was upon a promissory note madeby the defendants payable to the order of the plaintiffs. Priorto the making of the note the plaintiffs had purchased a farm,and being unable to pay the full purchase price, had executeda mortagage in favor of the vendor, giving the vendor the rightin case of default, of peaceable re-entry and possession. Aftermaking a considerable, down payment on the purchase contract,the plaintiffs defaulted and were given thirty days notice tovacate. The plaintiffs then requested that the vendor givethem sufficient time to find a purchaser of their interest. Thisrequest was granted. The plaintiffs then succeeded in inter-esting the defendants in the property and through the localagent of the vendor a deal was closed whereby the plaintiffsagreed to vacate the premises by a certain date and to transfertheir interest in the property to the defendants. The defendantsgave in return the note in question. At the time specified forthe plaintiffs to vacate the premises, the plaintiffs breachedthat much of the agreement, and as a consequence the defendantsrefused to honor the note when it came due. Upon suit on thenote, the defendants relied upon the fact that the plaintiffswere already under a duty to the original vendor to vacatethe property and that, as a consequence, there was no con-sideration for the note. Although the court decided that theplaintiffs were under no duty to the vendor to vacate and that,therefore, there was consideration; it said:"The rule is well established that the promise to do whata person is already obligated to do is- not sufficient con-sideration for a promise made in return. (Citing author-ity)."Pursuant to this principle of law it is well establishedthat an agreement to surrender possession of propertywhich the promisor is already under legal obligation to'(1945) ...... Mont ....... 158 P. (21) 627, 629.1Babbitt: Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?Published by ScholarWorks at University of Montana, 1947NOTE AND COMMENTsurrender is not sufficient consideration to support apromise. (Citing authority)."If, therefore, the plaintiffs were already under an obli-gation to surrender the possession of the property, the de-fendants contention would be meritorious. (Citing au-thority)."There is no indication that the court considered the differencebetween the case where the promisee is already under a dutyto the promisor and where he is under a duty to a thirdperson. The cases and texts which it cites refer to the formerand do not fit the facts of this case, however.It should be admitted at this point that the great weightof authority in the United States supports this view.' Layingaside the question of whether the minority view is preferableor not, it is submitted that under our code provisions theMontana courts should follow the minority view.R.C.M. 1935, §7503, defines consideration as follows:"Any benefit conferred, or agreed to be conferred, uponthe promisor, by any other person, to which the promisor isnot lawfully entitled, or any prejudice suffered, or agreedto be suffered, by such person, other than such as he is atthe time of consent lawfully bound to suffer,as an induce-ment to the promisor, is a good consideration for a promise.(Italics the author's).It is with the meaning of the first clause of this section thatwe are presently concerned.Before going further, however, it would be well to make afew distinctions so that the problem under consideration willemerge more sharply. In the first place, there is no doubt ofthe invalidity of a second promise made to one already underan obligation, if the promise is made by the original promiseeto perform his original obligaton. Neither benefit to thepromisor, that is, a benefit to which he is not already lawfully21 WILusToN, CoNT&crTS (Rev. Ed. 1936) 131, p. 454, and cases citedin note 3 thereon. A study of the cases cited in this note will revealthat In a number of Jurisdictions the courts have failed to see the dis-tinction between a second promise between the original parties and apromise made by a third party. Havana Drill-Press Co. v. Aahurst,(1893) 148 Ill. 115, 35 N.E. 873; Alley v. Turk, (1896) 8 App. Div. 50,40 NYS 433; Petze v. Leary (1907) 117 App. Div. 829, 102 NYS 960;Hamilton v. Oakland School District of Alameda County, (1933) 219Cal. 322, 26 P. (2d) 296. One California case, however, recognized thedistinction but held that "A promise by one to fulfill his own contractwith another is no consideration for a promise by a third party";Tipton v. Tipton (1933) 133 Cal. App. 500, 24 P. (2d) 525.2Montana Law Review, Vol. 8 [1947], Iss. 1, Art. 6https://scholarworks.umt.edu/mlr/vol8/iss1/6MONTANA LAW REVIEWentitled, nor detriment to the promisee would exist in such asituation and the lack of consideration of any sort is obvious.But in Hewitt v. Novak' such was not the case, as the pre-exist-ing duty was to the vendor and not to the defendant. The de-fendant was clearly a stranger to the original contract.Secondly, the problem at hand can be distinguished from thecase of a duty imposed by law. In such a case the promise isinsufficient consideration although the original obligation doesnot run directly to the promsee of the later agreement. How-ever, the obligation does run to the public of which the promiseeis a member, and as such he is "lawfully entitled" to the per-formance of the duty in question.' But duties imposed by lawapply to officers of the law or to certain individuals whose busi-ness is such that it is subject to the control of the state. Thedistinction between such a duty and the one owed by the plain-tiff in Hewitt v. Novak' is obvious, as the plaintiff's duty wasimposed by contract between plaintiff and vendor, and not bylaw, so that prior to the subsequent promise only the vendorwas "lawfully entitled" to have the plaintiff remove from thepremises.Returning, then, to a consideration of the statutory defin-ition of consideration in Montana, we must look to the historicalbackground of the section to interpret the clause relating to"benefit to the promisor.'" §7503 was adopted verbatim fromthe Field Civil Code of New York, §780." In the original re-port of the Field Code the Code Commissioner's discussion ofthe terminology used shows that the clause "... to which the'See note 1. supra.'1 WILLISTON, CONTRACTS (Rev. Ed. 1936) 132, p. 463. In Hewitt v.Novak the court cited this section as sustaining its view. It is clearlynot in point.'See note 1, supra.aThe only cases that have arisen prior to Hewitt v. Novak that calledfor a consideration of the question were cases where the second promisewas made by the original parties to the first promise, and are there-fore not in point. See Kinna and Ming v. WVoolfolk, (1882) 4 Mont.318, 1 P. 401, where the consideration furnished by the two promiseeswas the Joining with the promisor in borrowing money to pay an obliga-tion owed by all three to a creditor. The promisees were thus underan obligation to the promisor to pay their respective shares. In North-western Nationa4 Bank v. Great Falls Opera House, (1899) 23 Mont.1, 57 P. 440, the court held that when the promisee, an employee of thebank, loaned the money of the bank, the bank and not the promiseefurnished the consideration and his act was that of the bank. Seealso Baker v. Citizens State Bank of St. Peter, Minn. (1928) 81 Mont.543, 264 P. 675.'§1605 of the California Civil Code is also identical.3Babbitt: Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?Published by ScholarWorks at University of Montana, 1947NOTE AND COMMENTpromisor is not lawfully entitled, . . ." is based directly uponthe English case of Scotson v. Pegg.'The case of Scotson v. Pegg involved a suit upon a promisemade to a carrier of coal that if he would unload the coal sothat the defendant vendee might obtain delivery of the cargothe defendant would give him additional compensation. At thetime the promise was made the plaintiff was already under acontractual duty to the vendor of the coal to unload the cargo.In sustaining the plaintiffs suit upon the promise, Marin, B.,said:" (The plea) is bad in law because the ordinary rule is thatany act done whereby the contracting party receives abenefit is a good consideration for a promise by him ....The defendant gets a benefit by the delivery of the coals tohim, and it is immaterial that the plaintiff had previouslycontracted with third parties to deliver their order."In a concurrng opinion, Wilde, B., said:"Here the defendant who was a stranger to the originalcontract, induced the plaintiffs to part with the cargo,which they might not otherwise have been willing to do,and the delivery of it to the defendant was a benefit tohim. . . . To say, (in such a case) that there is no con-sideration is to say that it is not possible for one man tohave an interest in the performance of a contract made byanother. "Using this case as the basis for the statutory language itis indeed difficult to see how a result as that suggested by thecase in question can be sustained under R. C. M. 1935, §7503, ifthe meaning that was originally imported to the words is fol-lowed. The "benefit" clause of the section is directly applicableto the facts of Hewitt v. Novak!It becomes even more difficult to sustain the view of thecourt when it is realized that the only reason for having the"benefit to the promisor" provision in the definition of con-sideration is to take care of such cases. This is the only situa-tion where it is possible for the promisor to receive a benefit towhich he was not previously entitled, moving from the promisee,and yet the promisee suffer no detriment. The promisor hascertainly received something to which he was not previously"lawfully entitled" but the promisee has done nothing which he'(1869) 6 H. & N. 295.9See note 1, supra.4Montana Law Review, Vol. 8 [1947], Iss. 1, Art. 6https://scholarworks.umt.edu/mlr/vol8/iss1/6MONTANA LAW REVIEWwas no already bound to do." As a matter of fact, the only reasonthat the accepted definition of consideration still retains the"benefit to the promisor" clause is because of the influenceupon the law of Scotson v. Pegg,,' and its companion case ofShadwell v. Shadwell,' and those few cases which have followedthe rule therein stated in the United States.' Shortly before theturn of the century there was a scholastic movement afoot tomodify the traditional definition of consideration that was con-tinually being used by the courts. It was thought at thattime by those -vho supported the proposed modification1' thata simplification in the law of contracts would result if a testof consideration involving only detriment to the promisee wasadopted. However, after a flurry of legal writing upon thesubject, those who would have modified the definition graduallyswung around to accept the prevailing theory of consideration,'with a realization that the "benefit to the promisor" clause wasnecessary to validate such contracts as Hewitt v. Novak."One of the most recent pronouncements of the positionurged by this article is in the Restatement of the Law of Con-tracts, which provides for the same result as reached in England.§84 (d) provides:"Consideration is not insufficient because of the fact that* . . (d) the party giving the consideration is then boundby a contractual or quasi-contractual duty to a third per-son to perform the act or forbearance given or promisedas consideration."The position thus taken by the Restatement of the Law of Con-tracts has been acclaimed as one of its greater departures fromthe numerical weight of authority in favor of a better andmore just rule of law."''*Williston, Successve Promises of Same Perlormane, 8 HARv. L. Rmv.27 (1894) ; particularly at page 33.'See note 9, supra."(1860) 30 L. J. C. P. (N. S.) 145.11 Wus.s Bo, CoNTm&crs (Rev. Ed. 1936) 131 p. 455, and cases citedthereon, notes 4 and 5."Williston, Succssive Promises of Same Performance, 8 HAzv. L. REv.27 (1894); particularly at pages 36, 38. In this article Willistoncriticized the rule as it stood then, and as it still stands, on the basisthat it was more logical to set up a test of ". . . what the promiseehas given, not what the promisor has received.""4Williston, Consideration in Bilateral Contracts, 27 HAI. L. Ray. 503.(1914) ; particularly at page 524. It is interesting to note the changein the position taken by Mr. Williston within a twenty year period.'See note 1, suprma"Whittier, The Restatement of Contracts and 0onsideration; Two Anglesof Approach, 18 Caxa. L. Rv. 611 (1929) ; particularly at page 621.5Babbitt: Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?Published by ScholarWorks at University of Montana, 1947NOTE AND COMMENTTherefore, in view of the codification of the rule of Scotsonv. Pegg,' that appears in R. C. M. 1935, §7503, and in view ofthe many expressions that the rule thus codified is the properdefinition of consideration, it is submitted that the MontanaSupreme Court in the case of Hewitt v. Novak" failed to giveeffect to the pertinent Montana statutory provisions and thatif the question should arise again the Supreme Court shouldfollow the minority rule. Bruce C. Babbitt"See note 9, espra."See note 1, aupra.NATURE AND SCOPE OF DOWER RIGHTSIN MONTANAAt common law the widow was entitled to a life interestin one-third of the lands which her husband owned duringcoverture, as her dower. As she took this interest under thelaw and not by succession to him, her husband's will could notdeprive her of it. She took no forced share in the person-alty. While some jurisdiction retain common law dower, inmost states legislation has given the widow a forced share ofher husband's property, which provision is more favorable toher! "These statutory substitutes generally allow her a sharein fee of which she may not be deprived by will, rather thana mere fractional life interest," says Atkinson,' eminent au-thority on Wills. Usually our statutes provide that the sur-vivor shall have an absolute interest in one-third of the realtyand the personalty of the deceased. This interest to whichthe surviving spouse is entitled by statute, and which the de-ceased cannot take away by deed or will, is statutory dower.'In some jurisdictions the widow takes her entire intestate sharein spite of contrary provisions of her husband's will. Inmany jurisdictions her forced share extends to her husband'spersonalty as well as realty, though the laws generally restrictthis to personalty owned by the husband at his death, and'ATKINSON, WILLA (1st ed. 1937) p. 81.228 C.J.S. Dower §5; op. cit. Skelly Oil Co. v. Murphy (1930) 180 Ark.1023, 24 S.W. (2d) 314; Schoellkopf v. De Vry (1937) 366 Ill. 39, 7N.E. (2d) 757, 110 A.L.R. 511; Wilson v. Htlligoss, 278 Ill. App. 564;McCulley v. Hardeman (1920) 143 Tenn. 1, 223 S.W. 146.3ATxNSON, WILLS (1st ed. 1937) p. 82.'Sayre, Husband and Wife as Statutory Heirs, 42 HAv. L. Riv. 331(1928-29).6Montana Law Review, Vol. 8 [1947], Iss. 1, Art. 6https://scholarworks.umt.edu/mlr/vol8/iss1/6

Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?

University of Montana School of Law

Montana Law Review
Volume 8
Issue 1 Spring 1947 Article 6
1947
Contracts: Is a Promise to Perform That Which Is
Due a Third Party Sufficient Consideration to
Support a Promise?
Bruce C. Babbitt
Follow this and additional works at: https://scholarship.law.umt.edu/mlr
Part of the Law Commons
This Note is brought to you for free and open access by The Scholarly Forum @ Montana Law. It has been accepted for inclusion in Montana Law
Review by an authorized editor of The Scholarly Forum @ Montana Law.
Recommended Citation
Bruce C. Babbitt, Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?, 8
Mont. L. Rev. (1947).
Available at: https://scholarship.law.umt.edu/mlr/vol8/iss1/6
MONTANA LAW REVIEW
CONTRACTS: IS A PROMISE TO PERFORM THAT
WHICH IS DUE A THIRD PARTY SUFFICIENT
CONSIDERATION TO SUPPORT A PROMISE?
From a dictum in the recent decision of the Montana Su-
preme Court in the case of Hewittv. Novak' an interesting study
of the sufficiency of consideration arises. Among other problems
involved in the case, the court considered the question of
whether a promise to do that which a person is already obligated
to a third party to do is sufficient consideration for a promise
in return.
In that case the suit was upon a promissory note made
by the defendants payable to the order of the plaintiffs. Prior
to the making of the note the plaintiffs had purchased a farm,
and being unable to pay the full purchase price, had executed
a mortagage in favor of the vendor, giving the vendor the right
in case of default, of peaceable re-entry and possession. After
making a considerable, down payment on the purchase contract,
the plaintiffs defaulted and were given thirty days notice to
vacate. The plaintiffs then requested that the vendor give
them sufficient time to find a purchaser of their interest. This
request was granted. The plaintiffs then succeeded in inter-
esting the defendants in the property and through the local
agent of the vendor a deal was closed whereby the plaintiffs
agreed to vacate the premises by a certain date and to transfer
their interest in the property to the defendants. The defendants
gave in return the note in question. At the time specified for
the plaintiffs to vacate the premises, the plaintiffs breached
that much of the agreement, and as a consequence the defendants
refused to honor the note when it came due. Upon suit on the
note, the defendants relied upon the fact that the plaintiffs
were already under a duty to the original vendor to vacate
the property and that, as a consequence, there was no con-
sideration for the note. Although the court decided that the
plaintiffs were under no duty to the vendor to vacate and that,
therefore, there was consideration; it said:
"The rule is well established that the promise to do what
a person is already obligated to do is- not sufficient con-
sideration for a promise made in return. (Citing author-
ity).
"Pursuant to this principle of law it is well established
that an agreement to surrender possession of property
which the promisor is already under legal obligation to
'(1945) ...... Mont ....... 158 P. (21) 627, 629.
1
Babbitt: Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?
Published by The Scholarly Forum @ Montana Law, 1947
NOTE AND COMMENT
surrender is not sufficient consideration to support a
promise. (Citing authority).
"If, therefore, the plaintiffs were already under an obli-
gation to surrender the possession of the property, the de-
fendants contention would be meritorious. (Citing au-
thority)."
There is no indication that the court considered the difference
between the case where the promisee is already under a duty
to the promisor and where he is under a duty to a third
person. The cases and texts which it cites refer to the former
and do not fit the facts of this case, however.
It should be admitted at this point that the great weight
of authority in the United States supports this view.' Laying
aside the question of whether the minority view is preferable
or not, it is submitted that under our code provisions the
Montana courts should follow the minority view.
R.C.M. 1935, §7503, defines consideration as follows:
"Any benefit conferred, or agreed to be conferred, upon
the promisor, by any other person, to which the promisor is
not lawfully entitled, or any prejudice suffered, or agreed
to be suffered, by such person, other than such as he is at
the time of consent lawfully bound to suffer,as an induce-
ment to the promisor, is a good consideration for a promise.
(Italics the author's).
It is with the meaning of the first clause of this section that
we are presently concerned.
Before going further, however, it would be well to make a
few distinctions so that the problem under consideration will
emerge more sharply. In the first place, there is no doubt of
the invalidity of a second promise made to one already under
an obligation, if the promise is made by the original promisee
to perform his original obligaton. Neither benefit to the
promisor, that is, a benefit to which he is not already lawfully
21 WILusToN, CoNT&crTS (Rev. Ed. 1936) 131, p. 454, and cases cited
in note 3 thereon. A study of the cases cited in this note will reveal
that In a number of Jurisdictions the courts have failed to see the dis-
tinction between a second promise between the original parties and a
promise made by a third party. Havana Drill-Press Co. v. Aahurst,
(1893) 148 Ill. 115, 35 N.E. 873; Alley v. Turk, (1896) 8 App. Div. 50,
40 NYS 433; Petze v. Leary (1907) 117 App. Div. 829, 102 NYS 960;
Hamilton v. Oakland School District of Alameda County, (1933) 219
Cal. 322, 26 P. (2d) 296. One California case, however, recognized the
distinction but held that "A promise by one to fulfill his own contract
with another is no consideration for a promise by a third party";
Tipton v. Tipton (1933) 133 Cal. App. 500, 24 P. (2d) 525.
2
Montana Law Review, Vol. 8 [1947], Iss. 1, Art. 6
https://scholarship.law.umt.edu/mlr/vol8/iss1/6
MONTANA LAW REVIEW
entitled, nor detriment to the promisee would exist in such a
situation and the lack of consideration of any sort is obvious.
But in Hewitt v. Novak' such was not the case, as the pre-exist-
ing duty was to the vendor and not to the defendant. The de-
fendant was clearly a stranger to the original contract.
Secondly, the problem at hand can be distinguished from the
case of a duty imposed by law. In such a case the promise is
insufficient consideration although the original obligation does
not run directly to the promsee of the later agreement. How-
ever, the obligation does run to the public of which the promisee
is a member, and as such he is "lawfully entitled" to the per-
formance of the duty in question.' But duties imposed by law
apply to officers of the law or to certain individuals whose busi-
ness is such that it is subject to the control of the state. The
distinction between such a duty and the one owed by the plain-
tiff in Hewitt v. Novak' is obvious, as the plaintiff's duty was
imposed by contract between plaintiff and vendor, and not by
law, so that prior to the subsequent promise only the vendor
was "lawfully entitled" to have the plaintiff remove from the
premises.
Returning, then, to a consideration of the statutory defin-
ition of consideration in Montana, we must look to the historical
background of the section to interpret the clause relating to
"benefit to the promisor.'" §7503 was adopted verbatim from
the Field Civil Code of New York, §780." In the original re-
port of the Field Code the Code Commissioner's discussion of
the terminology used shows that the clause "... to which the
'See note 1. supra.
'1 WILLISTON, CONTRACTS (Rev. Ed. 1936) 132, p. 463. In Hewitt v.
Novak the court cited this section as sustaining its view. It is clearly
not in point.
'See note 1, supra.
aThe only cases that have arisen prior to Hewitt v. Novak that called
for a consideration of the question were cases where the second promise
was made by the original parties to the first promise, and are there-
fore not in point. See Kinna and Ming v. WVoolfolk, (1882) 4 Mont.
318, 1 P. 401, where the consideration furnished by the two promisees
was the Joining with the promisor in borrowing money to pay an obliga-
tion owed by all three to a creditor. The promisees were thus under
an obligation to the promisor to pay their respective shares. In North-
western Nationa4 Bank v. Great Falls Opera House, (1899) 23 Mont.
1, 57 P. 440, the court held that when the promisee, an employee of the
bank, loaned the money of the bank, the bank and not the promisee
furnished the consideration and his act was that of the bank. See
also Baker v. Citizens State Bank of St. Peter, Minn. (1928) 81 Mont.
543, 264 P. 675.
'§1605 of the California Civil Code is also identical.
3
Babbitt: Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?
Published by The Scholarly Forum @ Montana Law, 1947
NOTE AND COMMENT
promisor is not lawfully entitled, . . ." is based directly upon
the English case of Scotson v. Pegg.'
The case of Scotson v. Pegg involved a suit upon a promise
made to a carrier of coal that if he would unload the coal so
that the defendant vendee might obtain delivery of the cargo
the defendant would give him additional compensation. At the
time the promise was made the plaintiff was already under a
contractual duty to the vendor of the coal to unload the cargo.
In sustaining the plaintiffs suit upon the promise, Marin, B.,
said:
" (The plea) is bad in law because the ordinary rule is that
any act done whereby the contracting party receives a
benefit is a good consideration for a promise by him ....
The defendant gets a benefit by the delivery of the coals to
him, and it is immaterial that the plaintiff had previously
contracted with third parties to deliver their order."
In a concurrng opinion, Wilde, B., said:
"Here the defendant who was a stranger to the original
contract, induced the plaintiffs to part with the cargo,
which they might not otherwise have been willing to do,
and the delivery of it to the defendant was a benefit to
him. . . . To say, (in such a case) that there is no con-
sideration is to say that it is not possible for one man to
have an interest in the performance of a contract made by
another. "
Using this case as the basis for the statutory language it
is indeed difficult to see how a result as that suggested by the
case in question can be sustained under R. C. M. 1935, §7503, if
the meaning that was originally imported to the words is fol-
lowed. The "benefit" clause of the section is directly applicable
to the facts of Hewitt v. Novak!
It becomes even more difficult to sustain the view of the
court when it is realized that the only reason for having the
"benefit to the promisor" provision in the definition of con-
sideration is to take care of such cases. This is the only situa-
tion where it is possible for the promisor to receive a benefit to
which he was not previously entitled, moving from the promisee,
and yet the promisee suffer no detriment. The promisor has
certainly received something to which he was not previously
"lawfully entitled" but the promisee has done nothing which he
'(1869) 6 H. & N. 295.
9See note 1, supra.
4
Montana Law Review, Vol. 8 [1947], Iss. 1, Art. 6
https://scholarship.law.umt.edu/mlr/vol8/iss1/6
MONTANA LAW REVIEW
was no already bound to do." As a matter of fact, the only reason
that the accepted definition of consideration still retains the
"benefit to the promisor" clause is because of the influence
upon the law of Scotson v. Pegg,,' and its companion case of
Shadwell v. Shadwell,' and those few cases which have followed
the rule therein stated in the United States.' Shortly before the
turn of the century there was a scholastic movement afoot to
modify the traditional definition of consideration that was con-
tinually being used by the courts. It was thought at that
time by those -vho supported the proposed modification1' that
a simplification in the law of contracts would result if a test
of consideration involving only detriment to the promisee was
adopted. However, after a flurry of legal writing upon the
subject, those who would have modified the definition gradually
swung around to accept the prevailing theory of consideration,'
with a realization that the "benefit to the promisor" clause was
necessary to validate such contracts as Hewitt v. Novak."
One of the most recent pronouncements of the position
urged by this article is in the Restatement of the Law of Con-
tracts, which provides for the same result as reached in England.
§84 (d) provides:
"Consideration is not insufficient because of the fact that
* . . (d) the party giving the consideration is then bound
by a contractual or quasi-contractual duty to a third per-
son to perform the act or forbearance given or promised
as consideration."
The position thus taken by the Restatement of the Law of Con-
tracts has been acclaimed as one of its greater departures from
the numerical weight of authority in favor of a better and
more just rule of law."'
'*Williston, Successve Promises of Same Perlormane, 8 HARv. L. Rmv.
27 (1894) ; particularly at page 33.
'See note 9, supra.
"(1860) 30 L. J. C. P. (N. S.) 145.
11 Wus.s Bo, CoNTm&crs (Rev. Ed. 1936) 131 p. 455, and cases cited
thereon, notes 4 and 5.
"Williston, Succssive Promises of Same Performance, 8 HAzv. L. REv.
27 (1894); particularly at pages 36, 38. In this article Williston
criticized the rule as it stood then, and as it still stands, on the basis
that it was more logical to set up a test of ". . . what the promisee
has given, not what the promisor has received."
"4Williston, Consideration in Bilateral Contracts, 27 HAI. L. Ray. 503.
(1914) ; particularly at page 524. It is interesting to note the change
in the position taken by Mr. Williston within a twenty year period.
'See note 1, suprma
"Whittier, The Restatement of Contracts and 0onsideration; Two Angles
of Approach, 18 Caxa. L. Rv. 611 (1929) ; particularly at page 621.
5
Babbitt: Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?
Published by The Scholarly Forum @ Montana Law, 1947
NOTE AND COMMENT
Therefore, in view of the codification of the rule of Scotson
v. Pegg,' that appears in R. C. M. 1935, §7503, and in view of
the many expressions that the rule thus codified is the proper
definition of consideration, it is submitted that the Montana
Supreme Court in the case of Hewitt v. Novak" failed to give
effect to the pertinent Montana statutory provisions and that
if the question should arise again the Supreme Court should
follow the minority rule. Bruce C. Babbitt
"See note 9, espra.
"See note 1, aupra.
NATURE AND SCOPE OF DOWER RIGHTS
IN MONTANA
At common law the widow was entitled to a life interest
in one-third of the lands which her husband owned during
coverture, as her dower. As she took this interest under the
law and not by succession to him, her husband's will could not
deprive her of it. She took no forced share in the person-
alty. While some jurisdiction retain common law dower, in
most states legislation has given the widow a forced share of
her husband's property, which provision is more favorable to
her! "These statutory substitutes generally allow her a share
in fee of which she may not be deprived by will, rather than
a mere fractional life interest," says Atkinson,' eminent au-
thority on Wills. Usually our statutes provide that the sur-
vivor shall have an absolute interest in one-third of the realty
and the personalty of the deceased. This interest to which
the surviving spouse is entitled by statute, and which the de-
ceased cannot take away by deed or will, is statutory dower.'
In some jurisdictions the widow takes her entire intestate share
in spite of contrary provisions of her husband's will. In
many jurisdictions her forced share extends to her husband's
personalty as well as realty, though the laws generally restrict
this to personalty owned by the husband at his death, and
'ATKINSON, WILLA (1st ed. 1937) p. 81.
228 C.J.S. Dower §5; op. cit. Skelly Oil Co. v. Murphy (1930) 180 Ark.
1023, 24 S.W. (2d) 314; Schoellkopf v. De Vry (1937) 366 Ill. 39, 7
N.E. (2d) 757, 110 A.L.R. 511; Wilson v. Htlligoss, 278 Ill. App. 564;
McCulley v. Hardeman (1920) 143 Tenn. 1, 223 S.W. 146.
3ATxNSON, WILLS (1st ed. 1937) p. 82.
'Sayre, Husband and Wife as Statutory Heirs, 42 HAv. L. Riv. 331
(1928-29).
6
Montana Law Review, Vol. 8 [1947], Iss. 1, Art. 6
https://scholarship.law.umt.edu/mlr/vol8/iss1/6


https://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1980&context=mlr

Contracts: Is a Promise to Perform That Which Is Due a Third Party Sufficient Consideration to Support a Promise?

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