Bentley v. Lamb , 112 Pa. 480 ( 1886 )

Mr. Justice Green

delivered the opinion of the court, April 26th, 1886.

We do not see how we can say as matter of law that there was no evidence of a consideration for the obligation in suit. There was no testimony as to what the actual agreement of the parties was in regard to the compensation to be paid to the plaintiff for her services. There was inferential evidence that it was six dollars per week, because that amount was paid to, and accepted by her, for one week’s service after the testator’s death. But this is not necessarily inconsistent with a possible promise that she should be paid a larger suni. It is of course consistent with the theory that the sum thus paid was the stipulated compensation,'and therefore .it would be evidence, though not conclusive, in an action for the services. But here the action is upon an express positive promise in writing, signed by the decedent, to pay a fixed sum. The only defence is want of consideration. What is the state of the proof upon this subject ? A previous writing, also signed by the decedent, is in evidence, in which he recites that the plaintiff had been in his employment for twenty-three years as saleslady, that she had been faithful in the discharge of her duty, and that he wished to give her additional compensation for her services, and in consideration of these facts he agrees that he will give her a due bill for three thousand dollars, to be paid by his executors within one year after his death. The decedent lived upwards of two months after this paper was executed, and the plaintiff continued to render him service to the time of his death. The writing not only recognizes bub declares that the due bill shall be given as compensation for services rendered — additional compensation it is true — but compensation nevertheless. To what it was additional we do not know. Whether it was additional to full or only partial compensation previously paid is only a matter of conjecture. There is no inference of law that the previous compensation was in full, and the inference of fact would rather be that it was partial only, simply because the decedent himself so treats and declares it. Such a declaration is certainly some evidence that there was an obligation which the decedent regarded as binding upon him, and in consideration of his own sense of dutj'- in the circumstances, no matter how it arose, he contracted with the plaintiff that he would give her a due bill for the amount stated. In execution of this contract he did give her the due bill in question upon which this suit is founded. If it be granted that the agreement to give the due bill imposed no legal obligation, how can it be denied that it created at least a moral obligation to do so. The duty to perform a positive promise which is arot contrary to law or to public policy, or obtained by fraud, imposition, undue influence or mistake, is certainly an obligation in morals, and if so, it is a sufficient consideration for an express promise. But in the due bill the recital of the consideration of actual services rendered is repeated, and it is some proof that the services had been rendered, and had not been fully compensated. The decedent himself so admits and asserts, and it would be an unjust assumption in the law to infer the contrary in the face of such testimony. These features in the present case constitute a wide difference between it and the cases cited for the plaintiff in error, • in which it was either proved or properly assumed that the past consideration was entirely executed. Here there is, in the first place, a written agreement to give the due bill, and the actual execution and delivery of the due bill in performance of that agreement. There is in addition the undisputed declaration of the promisor that both the agreement and due bill were given as compensation for long and faithful services actually rendered by the plaintiff, and no distinct proof that those services had been fully paid for. In such circumstances we cannot say there was no evidence of any obligation, legal or moral, to give the due bill in question, and such being the case, there being nothing else to impeach the right of recovery, the court below was right in directing a verdict for the plaintiff.

Judgment affirmed.