#### Eycleshimer vs. Van Antwerp.

Where *the*defendant subscribed a *writing, by which he promised to pay to another*person a certain sum of money, provided the promisee should, within a specified time, erect a hotel of certain dimensions, upon a certain site; *Held,*‘ that the instrument imported a request to the promisee to erect the hotel, and that a compliance with the request by the promisee was a sufficient consideration for the defendant’s promise.

APPEAL from tbe Circuit Court for *Jefferson*County.

Tbe complaint alleged that *Van Antwerp,*in 1855, executed and delivered to A. Hyatt Smith an instrument in writing, by which be promised to pay, two years after date, to said Smith or order $100, witb interest, &c., provided Smith should, within that time, cause to be erected a hotel in Janesville, upon a certain site, and in accordance witb a certain plan therein described; that Smith, within tbe time specified, duly performed tbe condition therein mentioned, and in 1859, transferred said instrument in writing to tbe plaintiff, for value ; and that said sum remained unpaid.

Tbe defendant demurred to the complaint, on tbe ground that it did not state facts sufficient to constitute a cause of action, and tbe court made an order sustaining tbe demurrer, from which tbe plaintiff appealed.

*Knowlton, Prichard & Jackson,*for appellant:

*547Tbe promise of the defendant wap in the nature of a continuing offer; and when the promisfee accepted the offer erected the building, the contract became binding on the promisor. *Amherst Academy vs. Cowls, 6*Pick., 427; *Trustees, &c., vs. Stetson,*5 id., 508 ; *Williams College vs. JDanforth,*12 id., 541; *Kennedy vs. Cotton,*28 Barb., 59 ; 1 Parsons on Con., 857, and cases cited in note. It is not necessary to allege the consideration of the contract in the complaint, if it is shown on the face of the contract there set forth, or can be clearly inferred therefrom. *Allen vs. Jaquish,*21 Wend., 628.

*Williams*& *Achilles,*for respondent,

contended that the complaint did not show that Smith ever accepted the defendant’s promise ; that even if he did accept it, his promise to build the hotel, whether implied from such acceptance or otherwise made by parol, was void by the statute of frauds (12 Barb., 602; R S. 1849, chap. 76, sec. 2), and the instrument set forth in the complaint was void for want of mutuality ; and that the complaint showed no sufficient consideration for the defendant’s promise. 10 Barb., 808 ; 2 Pick., 578; 11 Mass., 112 ; 21 Wend., 189 ; 1 Corns., 581.

April 10

*By the Court,*

DixoN, C. J.

The rules of law as to what constitutes a sufficient consideration to support a promise, are well settled. They are, that it must be some matter of benefit to him who makes the promise, or of loss or disadvantage to him to whom it is made; and in addition to this, it must appear that it arose or was moved at the express or implied request of the promisor. The question here is, whether the case made by the complaint comes within these rules. And we think it does. The expense and obligations incurred by Smith, the promisee, in the erection of the hotel, were such a loss and inconvenience to him as constitute a valid consideration, and the undertaking of the defendant to pay him the sum of money named, provided he would erect it within the time specified, was of itself, if not an express, at least an implied request to enter into and incur them. The promise was, in its very nature, a continuing request to Smith to subject himself to the losses and liabilities which, *548it was known to both parties, must ensue from tbe prosecution of an enterprise of tbe kind, and in tbe direct contemplation of wbicb it was made. And if it be admitted that tbe defendant might, at its inception, and before any work was done, have retracted it, for want of mutuality, yet, until be did so, it was good as a request, and after tbe expenses were incurred and tbe hotel built, it was too late for him to withdraw it. Smith must be presumed to have incurred tbe expense, in part at least, u]3on tbe faith of tbe request and promise; and after be has done so, it would be most unjust to allow tbe defendant to repudiate them, and refuse to reimburse him for moneys thus laid out.

This view of tbe question, we think, is fully sustained by tbe cases of *Homes vs. Dana,*12 Mass., 196, and *Trustees of Farmington Academy vs. Allen,*14 id., 172. In tbe former case, where certain persons agreed to lend to tbe editors of a newspaper tbe sums of money set against their respective names, tbe same to be paid to one of their number as agent, and such agent advanced money to tbe editors on tbe ground of tbe subscription, it was held be bad a right of action against a subscriber who refused to pay tbe sum be bad subscribed. Tbe decision was put upon tbe ground that, with tbe knowledge of tbe subscriber, tbe agent was led to confide in bis engagement, so far as to advance bis own money for him. In tbe latter case, a subscriber to a paper for raising a fund for tbe establishment of an academy, who was not thereby legally bound, was held liable to pay tbe trustees tbe sum subscribed, because when applied to for payment, be did not dissent, but paid a part, and because, without objection, be permitted tbe trustees to proceed in expending money on tbe faith of tbe supposed subscription. This, tbe court say, was expending money for him on bis implied request. In principle there can be no distinction between those cases and tbe present; and whether they be put upon tbe ground of an estoppel *in pais,*or an implied request, they are, in our opinion, equally sound and wholesome law.

Tbe order of tbe circuit court sustaining tbe demurrer to tbe complaint, is reversed, and tbe cause remanded for further proceedings according to law;