Promise

A declaration, verbal or written, made by one person to another for a good or valuable consideration, by which he binds himself to do or to forbear from doing some act, and gives to the other a legal right to demand and enforce fulfillment.' Refers to the engagement of a party without reference to the reason for it or to the duties of other parties. See Proposal. ''Agreement" is seldom applied to specialties, and " contract " is generally confined to simple contracts.'-' See those terms.

Promisor.

He who makes a promise.

Promisee.

He to whom a promise is made.

Promissory.

Involving a promise; executory: as, a promissory — note, oath of office, representation, qq. v.

Conc Tirrent promises

Where the acts to be performed are simultaneous.

Dependent promises

When the agreements go to the whole of the consideration on both sides; when one promise is made the consideration of another.

Independent promises

To the extent that the agreements do not go to a part of the consideration on both sides.

3 Express promise.

A promise made in express tertns, — openly stated.

Implied promise

Is inferred from the acts or position of a person. See Raise. Mutual promises. Promises exchanged at the same time, the one in consideration of the other. A promise on the part of the plaintiff to do something of advantage in law to the defendant, and on the part of the defendant to do something of advantage in law to the plaintiff — one promise being the consideration of the other.^ Whether one promise be the consideration for another, or whether the perfoi-manoe, and not the mere promise, be the consideration, is to be determined by the intention and meaning of the parties, as collected from the instrument, and the application of good sense and right reason to each particular case." One dependent promise is a, condition precedent to the other. The breach of an independent promise may be paid for in damages. Either party to a concurrent > [{Tewcomb v. Clark, 1 Denio, 228-29 (1845), Jewett, J. 2 [1 Pars. Contr. 6. See 3 Bl. Com. 158. s [3 Pars. Contr. 677, 588; Dermott v. Jones, 23 How. 331 (1859). 4 Schweider v. Lang, 29 Minn. 256 (1882), Berry, J. promise may sue the other for a breach of the contract, on showing that he was ready to do his part, or was prevented from doing it by the other party. ^ New promise. A promise to pay a debt barred by the statute of limitations. The promise by which a discharged debt is revived must be clear, distinct, and unequivocal. It may, at the same tinae, be either absolute or conditional. If the latter, the pccurrence of the condition must be averred. The rule is different in regard to a debt barred by lapse of time. Acts and declarations recognizing the present existence of the debt have been held to take a case out of the statute.' ^he expression of an intention to pay the barred debt is not sufficient. There must be a promise before the debtor is bound. An intention is but the purpose a man forms in his own mind; a " promise " is an express undertaking or agreement to carry that purpose into effect, and must be express, in contradistinction to a promise implied from an acknowledgment of the justness or existence of the debt. The promise must be clear, distinct, omequivocal.' " I will send you the first spare ' V ' or ' X ' I have," does not fairly import a promise to pay absolutely five or ten dollars.* See further Acknowledgment. 1; Payment, Part. Original and collateral promise. Expressions used in speaking of liability under the statute of frauds "to answer for the debt or default of another: " the former designating the obligation of the principal debtor; the latter, the obligation of the person undertaking to answer for the debt. " Original " also characterizes any neto promise to pay an antecedent debt of another.s When the object of the promise is a direct benefit to the promisor which he did not enjoy before, and the promise to pay another's debt is a mere incident, the former is not within the sfatute. Within the statute is a promise, where the main object is to obtain the release of the person or the property of the debtor, or other forbearance or benefit to him, though a new consideration moves to the promisor." Cases in which a promise is collateral to the principal contract, but is made at the same time, and be- '8 Pars. Contr. 677. On implied promises, see 19 Cent. Law J. 462-«5, 480-88 (1884), cases; promises enforcible by strangers, 18 id. 136 (1884), cases. •> Allen V. Ferguson, 18 Wall. 3 (1873), Hunt, J. s Shockey v. Mills, 71 Ind. 293 (1880), Worden, J.; Hubbard u Farrell, 87 id. 217 (1882); Denny v. Marrett, 29 Minn. 301 (1882); Parker v. Butterworth, 46 N. J. L. 246-47 (1884), cases; Shepherd v. Thompson, 123 U. S. 234-39 (1887), cases; B. S. § 955: 14 F. R. 390, 392, cases. •Bigelow V. Norris, 141 Mass. 15 (1880); Elwell v. Cumner, 136 id. 102 (1883); Dennan v. Gould, 141 id. 16 See generally 27 Cent. Law J. 431 (1888), cases. » [Mallory v. Gillett, 21 N. Y. 414-33 (1860), cases, Comstock, C. J.; 2 Pars. Contr. 7, 9. "Furbish v. Goodnow, 98 Mass. 297 (1867),' cases, comes an essential ground of credit given to the principal debtor, are generally within the statute; so, also, cases in which the collateral agreement is subsequent to the execution of the debt, and not the inducenient to it. But whenever the main purpose of the promisor is not to answer for another, but to subserve some pecuniary or business end of his own, involving benefit to himself or damage to the other party, his promise is not within the statute, although in form and effect to pay the debt of another." The person for whose benefit a binding promise to another is made, unless only incidentally benefited, may maintain an action on it against the promisor.'^ Compare Guaranty. *