36 Vt. 681 (1864)
The plaintiff came into possession of a bull owned by the defendant after taking it up as an estray.1 Over the ensuing period, the plaintiff provided care and maintenance for the animal, thereby incurring substantial charges for its keeping.2 The care continued without any initial request from the defendant for the services rendered.3
The defendant subsequently made an express promise to remove the bull from the plaintiff's custody and to pay for the expenses of its care.4 The parties understood this commitment to extend to both the charges that had already been incurred before the promise and any future costs that would accrue until the defendant retrieved the animal.5 The promise was made without any new consideration being furnished at the time it was given.6
Although the plaintiff had not complied with the statutory requirement to advertise the estray, he commenced an action seeking recovery of his entire account.7 On appeal, the Supreme Court of Vermont affirmed the judgment in the plaintiff's favor.8
Whether the plaintiff may recover for the portion of the bull's keeping that occurred before the defendant's promise to pay?9
A promise upon a past consideration is binding.10 This is true if the consideration moves directly from the plaintiff to the defendant and enures directly to the defendant's benefit.11 The promise is equivalent to a previous request and creates a legal liability where none existed before for want of a request.12 This principle applies even though no prior legal obligation existed, distinguishing it from cases resting solely on moral obligation without any pecuniary benefit to the promisor.13
Yes. The established facts demonstrate that the plaintiff took up the defendant's bull as an estray and kept it for a period of time, generating charges for its care, after which the defendant promised to take the bull away and pay for the keeping.14 Although some of the keeping occurred prior to this promise, the care provided moved directly from the plaintiff to the defendant and enured directly to the defendant's benefit by preserving the value of his property.15 The subsequent promise therefore renders the defendant liable for that prior portion as well.16
This application follows because the plaintiff parted with something of value at his own expense that conferred a concrete advantage on the defendant, satisfying the requirement for an enforceable promise on past consideration.17 The absence of any prior request by the defendant is cured by the express promise, which the law treats as equivalent to a previous request.18
The plaintiff may recover for the portion of the bull's keeping that occurred before the defendant's promise to pay.19
Whether the defendant's express promise to pay allows recovery for keeping an estray despite the plaintiff's failure to advertise as required by statute?20
Yes. The established facts show that although the plaintiff had not advertised the estray as required by statute, the defendant made an express promise to pay for the keeping of the bull.23 This promise waives the statutory objection, permitting recovery of the full account without compliance with the advertising requirement.24
The waiver operates effectively because the statute creates a personal defense.25 The defendant is free to relinquish this defense by his own undertaking to pay.26 This removes any barrier to the plaintiff's recovery of the entire amount charged for the care provided.27
The defendant's express promise to pay allows recovery for keeping an estray despite the plaintiff's failure to advertise as required by statute.28