It is extremely doubtful that the purported acceptance some two and one half years after the offer was made, would be valid in the absence of an estoppel as to time for acceptance. In the case of Old American Life Ins. Co. v. Biggers, 10 Cir., 172 F.2d 495, 8 A.L.R.2d 781, it was held that an executory promise is all that is necessary if there is a valid moral obligation; as a result, if the letter of February 28, 1946, can be considered an executory promise, the legal efficacy of the acceptance or lack of it is not important. The moral obligation referred to in the Old American case is based upon 15 O.S.A. § 107.
This is true even though there was no antecedent or contemporaneous promise or request, and no legal liability at any time prior to the subsequent promise. (See Old American Life Ins. Co. v. Biggers, (1949, C.A. 10th) 172 F.2d 495; State, ex rel v. Funk, 105 Or. 146, 161, 209 P. 113; Estate of Schoenkerman, 236 Wis. 311, 294 N.W. 810.) In Holland v. Martinson, supra, this court held:
One of defendant's answers to plaintiff's argument is that it is plain from his Amended Petition, and brief, that the causes of action he attempted to allege are based upon an agreement contemplating the sale, to plaintiff, of Gammill's power, as the defendant Company's President, to control its operations and the distribution of its profits. They take the position that such a corporation president's promise to distribute the corporation's profits, or to continue a person in its employ indefinitely, by exercising such so-called control, is invalid and unenforceable. They cite Old American Life Insurance v. Biggers, 10 Cir., 172 F.2d 495, 499, 8 A.L.R.2d 781, in which the court held: "* * * the fiduciary powers vested in a president of a corporation and in one authorized to act as proxy for a member cannot be bartered or sold.
* * * a moral obligation is sufficient to support an executory promise where the promisor has originally received from promisee something of value in the form of a pecuniary or material benefit, under such circumstances as to create a moral obligation on the part of the promisor to pay for what he received, even though there was no antecedent or contemporaneous promise or request, and no legal liability at any time prior to the subsequent express promise." See Annotations, 8 A.L.R.2d 787, 798. There can be no question but that the defendant was under a moral obligation to compensate plaintiffs for their services in showing the Depew gasoline plant to his agent Neuwald and in otherwise making defendant acquainted with the availability of said plant for purchase, its price, extent and value, especially when the undisputed evidence strongly indicates that such services were rendered with the intention and expectation of both parties to the controversy, that they would be paid for it. See Old American Life Ins. Co. v. Biggers, 10 Cir., 172 F.2d 495, 8 A.L.R.2d 781. We think that when defendant promised to pay $5,000 for these services if he bought the plant, he himself recognized their value; and the fact that they were of ultimate benefit to him, is indicated by the fact that when Harry Degen approached him about buying it almost 8 months later, defendant was already acquainted with the property and had a degree of familiarity with its prospects, and invested in it without having to go to Depew to inspect it, when Degen and Bankoff went.
adopted); Flex v. Houston Bank Trust Co., 489 S.W.2d 126 (Tex.Civ.App. — Houston (14th Dist.) 1972, no writ); Miller v. Aaron, 413 S.W.2d 426 (Tex.Civ.App. — Dallas 1967, writ ref'd n.r.e.); Simpson v. Williams Rural High School Dist., 153 S.W.2d 852 (Tex.Civ.App. — Amarillo 1941, writ ref'd), and Armstrong v. City Nat. Bank, 16 S.W.2d 954 (Tex.Civ.App. — Galveston 1929) cert. denied, 281 U.S. 737, 50 S.Ct. 333, 74 L.Ed. 1152. No such past legal obligation existed in the present case as a basis for the alleged moral obligation. According to some authorities, a past legal obligation is not essential if the promisor has previously received from the promisee a material benefit not intended to be gratuitous. Old American Life Ins. Co. v. Biggers, 172 F.2d 495, 8 A.L.R.2d 781 (10th Cir. 1949); Edson v. Poppe, 24 S.D. 466, 124 N.W. 441 (1910); Park Falls State Bank v. Fordyce, 206 Wis. 628, 238 N.W. 516, 79 A.L.R. 1339 (1931). Those authorities, however, do not support the bank's position here because in order for a moral obligation arising from a past benefit to be recognized as consideration for an executory promise, the past benefit must not have constituted the consideration for another promise already performed or still legally enforceable.
But even under this rule, if there was no expectation of payment by either party when the services were rendered, the promise is a mere promise to make a gift and not enforceable. (See Old American Life Ins. Co. v. Biggers, 172 F.2d 495; Marnon v. Vaughan Motor Co., 184 Ore. 103 [ 194 P.2d 992].) Appellant places her main reliance on Carrington v. Smithers, 26 Cal.App.