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because the latter had gone to Florida for several days without their consent. Morgan insists that he told Davis that he was going, and that Davis made no objection. He claimed that he was discharged without proper cause, and brought suit for the extra compensation promised. The jury found a verdict in his favor; and the court having refused to grant a new trial, Davis & Co. excepted.

If the promise contemplated that Davis & Co. were to pay Morgan ten dollars per month for that part of the year which had already passed, and as to which there had been a settlement, it was manifestly nudum pactum; for a past transaction, the obligation of which has been fully satisfied, will not sustain a new promise: Gay v. Mott, 43 Ga. 254. And the result is ' practically the same whether Morgan or Davis was correct in the statement of the conversation. Both proved a promise to give more than was due, and to pay extra for what one was already legally bound to perform. The employer, therefore, received no consideration for his promise to give the additional money at the end of the year. Morgan had agreed to work for twelve months at the price promised; and if, during the term, he had agreed to receive less, the employer would still have been liable to pay him the full forty dollars per month. On the other se hand, the employer could not be forced to pay more than the contract price. He got no more services than he had already contracted to receive, and, according to an almost unbroken line of decisions, the agreement to give more than was due was a nudum pactum and void as having no consideration to support the promise. The case is something like that of Bush v. Rawa lins, 89 Ga. 117, 14 S. E. 886, where the landlord agreed to give the tenant certain property if he would pay his rent promptly, and it was held that such a promise was a gratuity and void as without consideration to support it. And see Tatum v. Morgan, 108 Ga. 336 (2), 33 S. E. 940; Civ. Code, sec. 3735. It is also within the principle of Stilk v. Myrick, 2 Camp. 317, where Lord Ellenborough held that an agreement to pay seamen extra for what they were bound by their articles to do was void. And so in Bartlett v. Weyman, 14 Johns. (N. Y.) 260, a similar 500 ruling was made in a case where a master agreed to give more wages if the seamen would not abandon the ship: See, also, Ayers v. Chicago etc. Ry. Co., 52 Iowa, 478, 3 N. W. 522. There are cases holding that a new promise is binding where one of the parties to a contract refuses to perform, and to save a loss the innocent party agrees to pay more


than the original contract price if the other will perform as originally agreed: Goebel v. Linn, 47 Mich. 489, 41 Am. Rep. 723, 11 N. W. 284. But even if that line of cases should not be disregarded as tending to encourage a breach of contract, they do not affect the rights of Morgan here, because he does not bring himself within their ruling. Had there been a rescission or formal cancellation (Vanderbilt v. Schreyer, 91 N. Y. 402) of the old contract by mutual consent, and if a new contract with

new terms had been made; or if there had been any change in . the hours

, services, or character of work, or other consideration be

to support the promise to pay the increased wages, it would have been enforceable. But as it was, Morgan proved that Davis promised to pay more for the performance of the old contract than he had originally agreed. Such a promise was not binding.

It is argued that the moral obligation would support the promise here, and undoubtedly there are cases in which such

consideration has been held to be sufficient; for example, that for arising from the duty of a father to support his bastard child;

Hargrove v. Freeman, 12 Ga. 342. At one time Lord Mansfield was quoted as having said that all promises deliberately

made should be held binding; but Lord Denman, in Eastwood the

F. Kenyon, 11 Ad. & E. 438, attempted to show that this was ads either a misquotation, or that, if such a doctrine could have been

deduced from whatever he said, the court had refused to follow

it in Littlefield v. Shec, 2 Barn. & Adol. 811. Tie cases holding port in conformity with Lord Mansfield's supposed statement, while

get out in Hargrove v. Freeman, 12 Ga. 342, were not adopted as law, because the court finally held that the principle to be deduced from the general current of authorities is, that for a moral obligation to constitute a sufficient consideration to sup

port an express promise, it must be founded upon an antecedent ode,

valuable consideration, though respectable authority can be ad

duced on the other side. In an agreement by one partner to - to

pay the other for extra work (Gray v. Hamil, 82 Ga. 375, 10 S. to E. 205), in the promise by a landlord to refund to tenants

money paid by them 507 for worthless fertilizer (Parrott v. ter Johnson, 61 Ga. 475), and in the agreement by a brother to the account to a sister for her interest as an heir at law in land

3 which he had improperly induced the father to convey (Brown is v. Latham, 92 Ga. 280, 18 S. E. 421), the court recognized that

there was a moral obligation to support the promise, but in each of the cases there was something very close akin to a legal obli


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gation or to a trust. In Pittman v. Elder, 76 Ga. 371, it was shown that an agreement to pay a debt barred by the statute of limitations, or discharged in bankruptcy, was not supported by what was formally called a “moral obligation,” but by the antecedent obligation, the new promise to pay amounting simply to a waiver of the statute, or of the discharge. The Civil Code, section 3658, defines a good consideration to be such as is founded on natural duty and affection, or "on a strong moral obligation." In the light of the authorities, however, the strong moral obligation here referred to seems to be one supported either by some antecedent legal obligation, though unenforceable at the time, or by some present equitable duty. The section, however, does not relate to the moral obligation which inheres in every promise: Austell y. Humphries, 99 Ga. 416, 27 S. E. 736. While all courts recognize the obligation arising from any undertaking, they are, from the necessity of the case, forced to hold that naked promises must depend for their performance solely upon the will of the promisor, and not upon the tribunals which are organized to perform the "duty of government to protect person and property,” and in pursuance thereof to award money damages for breaches of contracts : Civ. Code, sec. 5699. But they cannot enforce promises binding on the conscience except in those cases where some pecuniary damage flows from the breach, or where, in addition to the moral obligation, the promise is also supported by a consideration. When one receives a naked promise and such promise is broken, he is no worse off than he was. He gave nothing for it, he has lost nothing by it, and on its breach he has suffered no damage cognizable by courts. No benefit accrued to him who made the promise, nor did any injury flow to him who received it. Such promises are not made within the scope of transactions intended to confer rights enforceable at law. They are lightly made, dictated by generosity, courtesy, or impulse often by ruinous prodigality. To enforce them by a judgment in favor of those who gave nothing therefor would 508 often bring such imperfect obligations into competition with the absolute duties to wife and children, or into competition with debts for property actually received, and make the law an instrument by which a man could be forced to be generous before he was just. Both under the civil and common law, courts were prohibited from enforcing contracts without consideration, and relegated the performance of such promises solely to those who made them.

Judgment reversed. By five justices.

A Promise Made to a person to induce him to perform an act which he is already bound in law perform is without consideration and not binding: Spencer v. McLean, 20 Ind. App. 626, 67 Am. St. Rep. 271, 50 N. E. 769. And a subsequent agreement not forming any part of an original contract, nor supported by the original consideration thereof, nor by any new consideration, is void: Macfarland v. Heim, 127 Mo. 327, 48 Am. St. Rep. 629, 29 S. W. 1030. Moral obligations as a consideration to support an express promise are dig. eussed in the monographic note to Ferguson v. Harris, 39 Am. St. Rep

. 735-746.


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[117 Ga. 521, 43 S. E. 854.} CORPORATION-Service of Garnishment on Agent.-An oficer's return reciting that a summons of garnishment was served "personally on S. C. Hoge, agent in charge of the Central of Georgia Railway Company," does not show a service upon the cor.

poration, but only upon Hoge in his individual capacity. (p. 176.) be

F. Chambers & Son, for the plaintiffs. J. E. Hall, R. D. Feagin, Hardeman, Davis, Turner & Jones and E. P. Johnston, for the defendant.

521 COBB, J. A summons of garnishment was issued and served “personally upon S. C. Hoge, agent in charge of the office of the Central of Georgia Railway Company.” Hoge filed an answer denying indebtedness. The court struck this answer, and entered a judgment by default against the railroad company, it not having filed any answer to the summons. The railroad company sued out a petition for certiorari, alleging that

the judgment entered against it was unauthorized and void, and 1 exception is taken to a judgment of the superior court sustain.

ing the certiorari.

Civil Code, section 4710, is as follows: "Service of a summons of garnishment upon the agent in charge of the office or business of the corporation in the county or district at the time of service shall be sufficient.”

To give the court jurisdiction of the corporation it is absolutely essential that the summons of garnishment shall be served upon it. It is within the power of the general assembly to prescribe how such service shall be perfected; and, under the provisions of the section quoted, service upon the corporation may be bad by serving the summons upon the agent in charge of its



office or business. The corporation may be served by delivering the process to the individual who is its agent; but the entry of service should indicate with reasonable certainty that it was the corporation and not the individual who was intended to be served. The entry of service in the 522 present case does not show a service upon the corporation, but only upon Hoge in his individual capacity; the words “agent in charge of the office" of the corporation serving merely to describe and identify the individual upon whom the service was made: See State v. Sallade, 111 Ga. 701, 702, and cases cited. This rule should, if anything, be more strictly applied in cases of garnishments than in ordinary suits : See in this connection, Clark v. Chapman, 45 Ga. 488. The service was upon Hoge individually, and lie properly answered the summons. The action of the court in striking the answer of Hoge and entering judgment by default against the railway company was erroneous, and the court properly sustained a certiorari sued out by it for the purpose of having the judgment set aside. If the officer's return had recited that he had served the summons of garnishment upon the Central of Georgia Railway Company, by handing the same personally to S. C. Hoge, who was the agent of the corporation and in charge of its office or business, this would have been sufficient. The return in Third Nat. Bank v. McCullough, 108 Ga. 249, 33 S. E. 848, was in this form. The question dealt with in the present case was not involved either in Central R. R. Co. v. Smith, 69 Ga. 268, or Flournoy v. Rutledge, 73 Ga. 735, or in Mitchell v. Southwestern R. R. Co., 75 Ga. 398. In all three cases the process was treated as referring to the individual named in his capacity as agent of the corporation in question, and the question was whether, so treating it, it was sufficient. Besides, in the last case, additional service was had upon the president of the corporation, and it was held generally that the service was sufficient.

Judgment affirmed. By five justices.



An Affidavit of Service of a summons reciting that affiant "personally served the same upon J. H. Elledge, the managing agent of the above-named defendant corporation,” such corporation being the sole defendant in the case, shows a service upon the corporation: Keener v. Eagle Lake etc. Co., 110 Cal. 627, 43 Pac. 14. Said the court: “If Elledge had been a codefendant with the corporation, and the return of service had shown that only one copy of the summons had been delivered to him, there would be some reason for holding that it was a personal service upon him alone; but, as the corporation was the sole defendant, that reason does not exist."

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