The opinion of the Court was drawn up by
Siiepley J.— While the common law doctrine is admitted, that there must be proof of a consideration to support an unsealed written contract, the position cannot be maintained without limitation, that a moral obligation is a sufficient consideration. There are many moral duties, which can never be properly enforced at law, although a verbal or written promise may have been made to perform them. Under certain circumstances there may be a very strong moral obligation to feed one who is hungry, or clothe one who is naked, or relieve one from suffering, or from peril; but no one would think, that the moral obligation acquired any additional strength from a promise to perform it. Nor would any one conversant with the doctrines of the common law consider, that these would compel the performance of such a promise. Other instances of moral duties of a like character have been presented in some of the decided cases. Judicial and other minds, perceiving that the position could not be received without limitation, have attempted to state some general rule or principle of limitation. The limitations presented have not always appeared to be satisfactory. The one contended for by the counsel for the defendant, “ that a moral obligation is a sufficient consideration for an express promise only in cases, where there has been some pre-existing legal obligation, which has become inoperative by positive law,” finds some support in the decided cases. But the case of a minor, who has bargained for property and receives the benefit of it, and has when of age promised to pay for it, is not one presenting a pre-existinglegal obligation. And yet such a promise is generally admitted to be binding ; and is often put as an example to illustrate the alleged rule, that a moral obligation is a sufficient consideration for a promise. And no case has been found, which denies, that a promise made by one of age to pay a debt contracted in infancy is valid.
*482When one person has voluntarily received a benefit from another, not gratuitously conferred, or has been the occasion, without sufficient excuse, of loss or injury to another, there arises a moral obligation to compensate him for the benefit received or the loss occasioned. And the law would enforce the performance of this duty, if some statute or rule of public policy providing for the general good, even at the expense of individual loss, did not interpose. In such cases the statute or rule of.law would not be violated, if the person, who had received the benefit, or occasioned the loss, should voluntarily make compensation. And when he has promised to make compensation the moral obligation arising out of such benefit received, or loss occasioned, will be a sufficient consideration for it. Mutual promises, each for the other, are considered a sufficient consideration. But when such promises are so made, that the law will not enforce the performance of them, the parties cannot be supposed ordinarily to be either injured or benefitted. Neither receives a present benefit or suffers a present injury. And if the law will not require the performance, and there is no attempt to perform made by either party, there is no moral obligation arising out of a refusal to perform, binding either to make compensation for any expected gains or losses. But so far as one may by such promises, before they are retracted, have induced the other to perform in part, or to incur expense in a preparation to perform, while he refuses him the benefit of the contract, he would cause him to suffer loss. There is much difference between anticipated gains and a benefit already received or a loss experienced. By the application of these principles the case may be decided. It appears, that in the month of August, 1840, the defendant agreed, that the plaintiff might occupy his tavern house for one year, and the plaintiff agreed to pay him therefor the sum of one hundred and twenty-five dollars. This agreement was not made in writing and signed by the parties. The statute then in force, c. 53, <§> 2, provided that all leases not in writing and signed by the parties should have the force and effect of leases or estates at will only. The argument for the plaintiff there*483fore, that the contract remained unimpaired, although the law would not enforce a performance of it, fails, for the statute reduced the contract to a lease at will. And it will be perceived, that to consider the contract as continuing to exist for a year, and to allow the plaintiff to recover damages for iho expected gains during that time, would be alike a violation of the statute provisions and the principles before stated.. For it being but an estate at will, either party might determine it even before a change of possession. And this appears to have been done. And it does not appear, that the plaintiff has suffered other actual loss or injury, than was occasioned by the removal of some of his goods to and from the house, by the journeys made to prepare for his removal, and by the expense incurred in the preparation of a tavern sign. And according to the principles before stated and without a violation of the provisions of the statute, the plaintiff may perhaps recover on the second count in his writ. For if the language used in the letter approved by the plaintiff, could be construed into an engagement to regard the agreement originally made, still binding so far as to make it the basis of a compensation for expected gains for one year, the provisions of the statute would prevent the plaintiff from setting up such a contract.
Exceptions sustained and a new trial granted.