I suppose that the promise would be
binding. The promise is offered in terms as the inducement for
the delivery, and the delivery is made in terms as the inducement
for the promise. It may be very probable that the delivery would
have been made without a promise, and that the promise would have
been made in gratuitous form if it had not been accepted upon
consideration; but this is only a guess after all. The delivery
need not have been made unless the owner chose, and having been
made as the term of a bargain, the promisor cannot set up what
might have happened to destroy the effect of what did happen. It
would seem therefore that the same transaction in substance and
spirit might be voluntary or obligatory, according to the form of
words which the parties chose to employ for the purpose of
affecting the legal consequences.
If the foregoing principles be accepted, they will be seen to
explain a doctrine which has given the courts some trouble to
establish. I mean the doctrine that an executed consideration
will not sustain a subsequent promise. It has been said, to be
sure, that such a consideration was sufficient if preceded by a
request. But the objections to the view are plain. If the request
was of such a nature, and so put, as reasonably to imply that the
other person was to have a reward, there was an express promise,
although not put in words, and that promise was made at [296] the
same time the consideration was given, and not afterwards.
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