Promise

An engagement by which the promisor contracts towards another for the performance of some act. 1 Denio (N. Y.) 226. "We are in the habit of considering as the essential feature of contract a promise by one party to another, or by two parties to one another, to do or forbear from doing certain acts. We are further in the habit of using the word 'promise' to signify a binding promise, as opposed to the offer of a promise, or, to use the cumbrous terminology of Austin, a pollicitation. * * * There are then three stages necessary to the making of that sort of agreement which results in contract: There must be an offer, there must be an acceptance of the offer resulting in a promise, and the law must attach a binding force to the promise, so as to invest it with the character of an obligation." Anson, Cont. 4.

An engagement by which the has certain peculiarities of its own. As in promisor contracts with another to perform other contracts, the parties must be sui juor do something to the advantage of the lat- ris. If, therefore, the man or the woman be ter. an infant, or labor under any other legal dis- The declaration of any party to an agree- ability, he or she will not be bound by a ment, so far as relates to anything to be promise of marriage; but if one of the pardone or forborne on his part, is called a ties be an infant and the other be an adult, promise. Except in the case of simultaneous the promise will be binding upon the latter; declaration, a promise is regularly either the Stra. 937; Hunt v. Peake, 5 Cow. (N. Y.) acceptance of an offer or an offer accepted. 475, 15 Am. Dec. 475; Warwick v. Cooper, Where the promise is embodied in a deed, 5 Sneed (Tenn.) 659; Mc Conkey v. Barnes, there is an apparent anomaly. Pollock, 42 111. App. 511. A promise made during Contr. 2, 7. infancy may be ratified after the infant at- Within the statute of frauds a promise to tains majority. An English statute requires pay the debt of another is an undertaking a new and distinct contract, after majority, by a person not before liable, for the pur- in order to bind the infant on his promise to pose of securing or performing the same du- marry after he comes of age; but a new conty for which the party for whom the under- tract may be inferred from continued actaking is made, continues liable. Dillaby v. ceptance of the engagement; L. R. 5 C. P. Wilcox, 60 Conn. 71, 22 Atl. 491, 13 L. R. A. 410. Neither does it follow that a promise 643, 25 Am. St. Rep. 299. of marriage is not binding because the par- When an oral promise is made, all that is ties to the promise cannot form a valid marsaid at the time in relation to it must be riage; they may be competent to contract considered; if, therefore, a man promises to though not competent to marry. pay all he owes, accompanied by a denial There must be a legal and valid considerathat he owes anything, no action will lie to tion; but as there are always mutual promenforce such a promise; Porter v. Mc Clure, ises, they are a sufficient consideration for 15 Wend. (N. Y.) 187. each other. There must be a meeting of the Strictly speaking a promise is not a rep- minds of the parties, i. e. a request or proporesentation; the failure to make it good sition on the one side, and an assent on the may give a cause of action, but it is not a other. If the communications between the false representation, which will authorize parties are verbal, the only questions which the rescission of a contract; Cunyus v. Guen- usually arise relate to evidence. The very ther, 96 Ala. 564, 11 South. 649. words or time or manner of the promise need And when the promise is conditional, the not be proved, but it may be inferred from condition must be performed before it be- the conduct of the parties, and from the circomes of binding force; Scouton v. Eislord, cumstances which usually attend an engage- 7 Johns. (N. Y.) 30. See 16 Ilarv. L. Rev. ment to marry: as, visiting, the understand- 319; Condition; Contracts; Third Person, ing of friends and relations, preparations for Contracts for the Benefit of. marriage, and the reception of the man by

A declaration, verbal or written, made by one person to another for a good or valuable consideration in the nature of a covenant by which the promisor binds himself to do or forbear some act, and gives to the promisee a legal right to demand and enforce a fulfillment. See Taylor v. Miller, 113 N. C. 340, 18 S. E. 504; Newcomb v. Clark, 1 Denio (N. Y.) 228; Foute v. Bacon, 2 Cush. (Miss.) 164; U. S. v. Baltic Mills Co., 124 Fed. 41, 59 C. C. A. 558. "Promise" is to be distinguished, on the one hand, from a mere declaration of intention involving no engagement or assurance as to the future; and, on the other, from "agreement," which is an obligation arising upon reciprocal promises, or upon a promise founded on a consideration. Abbott. "Fictitious promises," sometimes called "implied promises," or "promises implied in law," occur in the case of those contracte which were invented to enable persons in certain cases to take advantage of the old rules of pleading peculiar to contracts, and which are not now of practical importance. Sweet.

— Mutual promises. Promises simultaneously made by and between two parties ; each being the consideration for the other.

— Naked promise. One given without any consideration, equivalent, or reciprocal obligation, and for that reason not enforceable at law. See Arend v. Smith, 151 N. Y. 502, 45 N. E. 872.

— New promise. An undertaking or promise, based upon and having relation to a former promise which, for some reason, can no longer be enforced, whereby the promisor recognizes and revives such former promise and engages to fulfill it.

— Parol promise. A simple contract; a verbal promise. 2 Steph. Comm. lO9.

— Promise of marriage. A contract mutually entered into by a man and a woman that they will marry each other.

An undertaking, either in words or in writing, to do or not to do some particular thing; properly, an undertaking by parol, or not under seal, a promise by deed being technically called a covenant Promises are dependent or independent express or implied, original or collateral, concurrent and mutual.

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. *

A declaration by which one person engages to another to do or forbear to do some act; an assurance (oral or written) given by one that some future event within his control shall be as described, for the benefit of another. Promisee: the person to whom a promise is made. Promisor: the person who makes a promise. Promissory: in the nature of a promise; yet to be performed; executory. Promise is to be distinguished, on the one hand, from a mere declaration of intention involving no engagement or assurance as to the future; and, on the other, from agreement, which is an obligation arising upon reciprocal promises, or upon a, promise founded on a consideration. See Aguee. When a promise is founded on some good or valuable consideration, it is called a binding, legal, or valid promise, and gives the promisee a right to demand and judicially compel its fulfilment, or enforce compensation for the breach. A promise destitute of consideration is not, in general, of legal obligation, and is called a mere or naked promise, or nude pact. The word promise, standing alone, properly embraces both classes. Promissory note. The name of a written instrument common among bankers and merchants, and in ordinary transactions involving money, whereby the subscriber promises to pay a definite sum of money at a specified time. Such notes generally express a promise to pay the sum named to a designated person "or order," meaning or to any one whom he may, by indorsement, apa fictitious or nominal person or bearer. Thus bank of England notes were drawn payable to Abraham Newland or bearer; and a note may be framed as a promise to pay to 1878 or bearer, or to pay to goods bought or bearer. In these cases, the instrument inures in favor of any rightful owner. The kinds above described are what are distinguished as negotiable promissory notes. And the expression is sometimes met in the decision, that such and such an instrument is or is not a promissory note, — meaning it is or is not negotiable. But " promissory note " is not, in a proper sense, limited to negotiable instruments. A promise to pay a specific sum to a living person, designated strictly, or without adding " or order " or " or bearer," is a promissory note, according to the general use of the term, though it is not a negotiable note, i.e. it is subject, in the hands of any transferee, to any equities available against the payee named. With respect to instruments which may be drawn so as to allow of discharge in values other than money, the line is difficult to be drawn, and the decisions are not perfectly consistent; but we take the test to be, that the paper is properly called a promissory note (not necessarily a negotiable one), if the primary legal obligation it imports is unconditional payment of a specific sum of money; if otherwise, it is not. Thus, " I promise to pay one hundred dollars, payable in calfskins," would be deemed a note; while " I promise to deliver calfskins to the value of one hundred dollars " would be regarded as a simple contract for delivery of the goods specified. But the importance of the distinction between notes and simple contracts, where negotiability is not concerned, is much diminished at the present day by the extension of the right of an assignee of a contract to sue in his own name, assimilation of modes of declaring or complaining on notes and contracts, and relaxation of rules as to variance-, applicable to cases when an instrument alleged as a note or contract might, on production, appear to the court to have been wrongly named. In any question whether the real question is negotiability, right of holder to sue in his own name, or variance between description in pleading and instrument as produced. Non-negotiable, as well as negotiable, notes are recognized. The term does not of necessity import negotiability. A suit by holder of a writing might be defeated in one state, on the gi'ound that the paper was not a promissory note, and must be sued in the name of the original promisee; while it would be sustained in another, where the liberty of an assignee to sue was broader. A defendant indicted for forgery or larceny of a promissory note might be acquitted on the ground that the writing produced in evidence was not a promissory note, and was erroneously so alleged in the indictment; when a civil suit, on a similar paper, might be sustained, although the complaint or declaration described the contract as a promissory note, on the ground that more liberal rules of pleading, in civil actions, justified disregarding the variance. Much attention to these different aspects of the question is necessary in reconciling the decisions. To bring an instrument within the designation promissory note, the promise must be unconditional; and, as to amount and time of payment, it must be certain. But this certainty is attained if the sum due and day when it is payable can be unquestionably ascertained from the terms of the paper, taken in connection with their recognized legal effect, though they are not expressed. Thus, " I promise to pay one hundred dollars in sixty days from date, with interest," would be sufficiently certain, because the day of payment can be computed by reckoning sixty days following the day of date (and adding three days for grace); and the sum is ascertainable by adding interest cast at the rate allowed by the law of the state, which is the legal effect of a promise to pay interest, naming no rate. The term promissory note signifies written engagement by one person to pay, absolutely and unconditionally, to another person therein named, or to his order, or to the bearer, a certain sum of money at a A promissory note must be for the payment of money only. Wallace v. Dyson, 1 Spears, 127. To constitute a promissory note, it must be payable in money absolutely and unconditionally. Bunker v. Athearn, 35 Me. 364. The term promissory note includes a writing otherwise a note, notwithstanding it does not give the name of a payee. Harding v. State, 54 Ind. 369. If a person draws a bill directly on himself, it is his promissory note, and he may be sued on it as such. Wardens, &c. of St. James Church v. Moore, 1 Ind. 289; Marlon & Mississinewa R. R. Co. v. Dillon, 7 Ind. 404. Instruments of doubtful character, but frequent occurrence, have been held to be embraced in the designation promissory notes, in the following cases: United States treasury notes. United States V. Hardyman, 13 Pet. 176. Certificates of deposit, drawn for a sum certain, payable at a future date, with interest, to the order of the person named, upon the return of the certificate. Miller V. Austen, 13 How. 218; 5 Mc Lean, 153; Poorman v. Mills, 35 Cat. 118; Carey v. Mc- Do'ugald, 7 Ga. 84; Laughlin o. Marshall, 19