CHAPTER CVII.

THE CONSIDERATION.

§2244. Consideration necessary to make valid contract What is a consideration.

$2245. Exceptions - Contracts under seal, and negotiable paper.

§ 2246. Adequacy of consideration immaterial.

§ 2247. In equity.

§ 2248.

"Good" and "valuable" consideration distinguished.

§ 2249. Moral obligation insufficient.

§ 2250. Promise to do what party is already legally bound to do insufficient. §2251. Payment of part of debt

Compromise - Exceptions.

§ 2257. Consideration is either executed or executory.

§ 2258. Past consideration insufficient.

§ 2259. Aliter where there is a previous request.

§ 2260. Money paid upon request.

§ 2261.

§ 2262.

Services rendered without request - No liability to pay.
Exceptions.

§ 2263. Consideration obtained by fraud.

§ 2264. Failure of consideration.

§ 2265. Partial failure of consideration.

§ 2244. Consideration Necessary to Make Valid Contract What is a Consideration.-An agreement, in order to constitute a contract, must include a consideration as well as a promise. A promise made without any consideration i. e., a gratuitous promise is not binding.1 A promise without consideration originally will not be supported by the fact that the party to whom it was made has sustained special damages. Thus where A and B

1 Rann v. Hughes, 7 Term Rep. 350; Whitehill v. Wilson, 3 Penr. & W. 405; 24 Am. Dec. 326; Carson v. Clark, 1 Scam. 113; 25 Am. Dec. 79; Smith v. Rankin, 4 Yerg. 1; 26 Am. Dec. 213; Jones v. Holliday, 11 Tex. 412; 62 Am. Dec. 487; Wilson v. Baptist Soc., 10 Barb. 308; Read v.

Vanarsdale, 2 Leigh, 567; Bolles v. Couli, 12 Minn. 113; Michaud v. Lagarde, 4 Minn. 43; Ashe v. De Rosset, 8 Jones, 240; Richardson v. Williams, 49 Me. 558; Pomeroy v. Slade, 16 Vt. 220; Mills Co. Bank v. Perry, 72 Iowa, 15; 2 Am. St. Rep. 228.

2 Thorne v. Deas, 4 Johns. 84.

were joint owners of a vessel, and A voluntarily undertook to get her insured, but neglected so to do, and the vessel was lost, it was held that B could not sustain an action against A for his neglect. The consideration for a contract need not appear upon its face, but may be proved by parol, or inferred from the terms of the agree ment. The alleged payment of a certain sum of money as the consideration of a contract may be proved either by evidence of payment in money or of payment by a note for that sum, which was received and accepted as money by the other party.3

A consideration has been well defined as consisting of "any act of the plaintiff from which the defendant or a stranger derives a benefit or advantage, or any labor, detriment, or inconvenience sustained by the plaintiff, however small the detriment or inconvenience may be, if such act is performed or inconvenience suffered by the plaintiff with the consent, express or implied, of the defendant."4 Therefore, where the defendant derived no

3 Morehouse v. Northrop, 33 Conn. 380; 89 Am. Dec. 211.

Tindal, C. J., in Laythoarp v. Bryant, 3 Scott, 250; Fisher v. Bartlett, 8 Me. 122; 22 Am. Dec. 225; Hind v. Holdship, 2 Watts, 104; 26 Am. Dec. 107; Chick v. Trevett, 20 Me. 462; 37 Am. Dec. 68; Reddick v. Jones, 6 Ired. 107; 44 Am. Dec. 68; Holt v. Robinson, 21 Ala. 106; 56 Am. Dec. 240; Tompkins v. Phillips, 12 Ga. 52; Molyneux v. Collier, 17 Ga. 46; Doyle v. Knapp, 4 Ill. 334; Warren v. Whitney, 24 Me. 561; 41 Am. Dec. 406; Doyle v. Dixon, 97 Mass. 208; 93 Am. Dec. 80; Bank of Hanover v. Bridgers, 98 N. C. 67; 2 Am. St. Rep. 317; Alabama etc. R. R. Co. v. R. R. Co., 84 Ala. 570; 5 Am. St. Rep. 401. In Bishop on Contracts, section 441,

it is said that "a consideration in the law of contracts must be a thing in some sense of pecuniary value.' But has money value anything to do with it? If A promise B to pay him five dollars if he will not eat a dinner or not wear his best coat for a day, is not the consideration of B's abstaining sufficient to support A's promise? But is not eating a dinner or not wearing a certain coat capable of being reduced to a money value? Money value, we conclude, has nothing to do with the consideration, which is always the doing, or promising to do, something not illegal, at the request of the promisce, which you are not already under a legal obligation to him to do. Thus in a recent case in Kentucky it was held that the abandonment of the use of tobacco is sufficient consideration to support an agreement to pay the promisee five hundred dollars if he would never take another chew of tobacco or smoke another cigar during the life of the promisor: Talbott v. Stemmons, Sup. Ct. Ky., 1889.

benefit, and the plaintiff suffered no possible loss or detriment, the undertaking is without consideration, and is nudum pactum. It is not necessary that a benefit should accrue to the person making the promise; it is sufficient that something valuable flows from the person to whom it is made, or that he suffers some prejudice or inconvenience, and that the promise is the inducement to the transaction. So mutual promises may be made, and in such a case the one promise furnishes a good consideration to support an action upon the other.3

Thus the following have been held to constitute a sufficient consideration to uphold a promise, viz.: The confidence induced by undertaking a service for another;1 the promise to pay the debts of a firm; canceling a written agreement; the substitution of a sixty days' note in place of cash; making a payment on a promissory note before it is legally demandable; an adjournment of a suit in a justice's court; the relinquishment by a child of all claim. upon his father's estate; 10 a contract between two indorsers

Ferrell v. Scott, 2 Spear, 344; 42 Am. Dec. 371.

* Brown v. Ray, 10 Ired. 72; 51 Am. Dec. 379; Jones v. Ashburner, 4 East, 463; Hilton v. Southwick, 17 Me. 303; 35 Am. Dec. 253; Carr v. Card, 34 Mo. 513; Underhill v. Gibson, 2 N. H. 352; 9 Am. Dec. 82; Powell r. Brown, 3 Johns. 100; Forster v. Fuller, 6 Mass. 58; 4 Am. Dec. 87; Townsley v. Sumrall, 2 Pet. 182; Lent v. Padelford, 10 Mass. 230; 6 Am. Dec. 119; Seaman v. Seaman, 12 Wend. 381; Watkins v. James, 5 Jones, 105; Dorwin v. Smith, 35 Vt. 69; Dyer v. McPhee, 6 Col. 174; Pitt v. Gentle, 49 Mo. 74; New Hanover Bank v. Bridgers, 98 N. C. 57; 2 Am. St. Rep. 317.

Howev. O'Mally, 1 Murph. 287; 3 Am. Dec. 693; Babcock v. Wilson, 17 Me. 372; 35 Am. Dec. 263; James v. Fulcrod, 5 Tex. 512; 55 Am. Dec. 743; Davis v. Calloway, 30 Ind. 112; 95 Am. Dec. 671; Funk v. Hough, 29 Ill. 145; Downey v. Hinchman, 25 Ind. 453; Nunnally v. White, 3 Met. 584; Whitehead v. Potter, 4 Ired. 257;

Appleton v. Chase, 19 Me. 74; Byrd v. Fox, 8 Mo. 574; Society in Troy v. Perry, 6 N. H. 164; George v. Harris, 4 N. H. 533; 17 Am. Dec. 446; Commissioners v. Perry, 5 Ohio, 58; White v. Denielt, 2 Hall, 405; Briggs v. Lizer, 30 N. Y. 647; Forney v. Shipp, 4 Jones, 527; Nott v. Johnson, 7 Ohio St. 270. But mutual promises, to be obligatory, must be simultaneous; it will not be sufficient if alleged to be made at different times on the same day: Livingston v. Rogers, 1 Caines, 583; Keep v. Goodrich, 12 Johns. 397; Tucker v. Woods, 12 Johns. 190; 7 Am. Dec. 305; James v. Fulerod, 5 Tex. 512; 55 Am. Dec. 743.

Hammond v. Hussey, 51 N. H. 40; 12 Am. Rep. 41.

Shoher and Carqueville Lithographing Co. v. Kerting, 107 Ill. 344.

Weld v. Nichols, 17 Pick. 538. Smucker v. Larimore, 21 Ill. 267. 8 Newsam v. Finch, 25 Barb. 175. Stewart v. McGuin, 1 Cow. 99; Richardson v. Brown, Cow. 255. 10 Weston v. Hight, 18 Me. 281.

of a note, that they will divide the loss between them;1 the desire of a party to have a contract discharged, and mutual promises to deliver up obligations held by each;2 becoming surety in an executor's bond; the indorsement of a promissory note; service to be rendered by a promisee in securing a loan for the promisor; an agreement to pay the expenses of another person if he will take a trip to Europe, in no way connected with the promisor's business; payment of interest in advance;' giving permission to a party to assume and manage a defense in suit; the sale of an equitable title to land; the assignment of a lease, subject to be avoided by re-entry, upon the part of the grantor; the benefit to a bank from the use of money collected on a note;" a conveyance of land to another upon the latter's promise to sell it, and pay over the price received above a certain sum; 12 the delivery and acceptance of goods; 13 an agreement to settle and arrange matters to prevent a suit from being brought against the promisor; services by one not bound in law to render them in aiding a party in interest in his preparation for trial by disclosing who were informed upon material points and what they testify to.15 A subscription to a common object with others, though gratuitous, creates a legal liability. The endowment of institutions of learning;

10

16

14

13 McDaniels v. Robinson, 26 Vt. 316; 62 Am. Dec. 574.

14 Cobb v. Cowdery, 40 Vt. 25; 94 Am. Dec. 370.

15 Cobb v. Cowdery, 40 Vt. 25; 94 Am. Dec. 370.

16 Norton v. Janvier, 5 Harr. 346; McDonald v. Gray, 11 Iowa, 508; 79 Am. Dec. 509; Comstock v. Howd, 15 Mich. 237; State Treasurer v. Cross, 9 Vt. 289; 31 Am. Dec. 626; Parsonage Fund v. Ripley, 6 Me. 442; Williams College v. Danforth, 12 Pick. 541; Ohio College v. Love, 16 Ohio St. 20; Doyle v. Glasscock, 24 Tex. 200. But see Cottage St. Meth. Church v. Kendall, 121 Mass. 528; 23 Am. Rep. 286; University of Des Moines v. Livingston, 57 Iowa, 307; 42 Am. Rep. 42; Johnson v. University, 41 Ohio St. 527;

the expense, liability, and trouble of officers of such institutions in raising endowments; or the undertaking of such officers to give "free tuition to twenty students forever,"-constitute a sufficient consideration upon which to base a contract.1

But a promise to bear part of the expense of suit made by one not interested in and not a party to the suit is not a good consideration; nor is an agreement by a postmaster's successor to redeliver a certain letter-case owned by the postmaster, if on writing to Washington the latter found that the department did not claim it;3 nor an agreement to convey land when it shall be paid for from the profits to be realized by the purchaser; nor a written agreement to give A the refusal of a farm, with no agreement on the part of A to take it.5

ILLUSTRATIONS. CONSIDERATION PRESENT. -A cotton-factor advanced money to A, who agreed to repay, with interest, and to ship a certain quantity of cotton to the factor, otherwise to pay commissions. Held, that A's promise was based on a sufficient consideration: Norwood v. Faulkner, 22 S. C. 367; 53 Am. Rep. 717. D. failed to fulfill a contract to construct a steam-engine for M. within a specified time. He then refused to deliver it unless M. would take it in satisfaction of the contract, and M. agreed so to receive it. Held, that this agreement was supported by a sufficient consideration, as D., although liable to damages for his breach of the contract, had the option of refusing to deliver the engine: Moore v. Detroit etc. Works, 14 Mich. 266. By parol an intestate agreed with a married woman that if she would change her place of residence, and remove and reside with her husband near the intestate for the residue of his life, she should receive a certain amount upon his death. Held, valid and founded upon sufficient consideration: Adams v. Honness, 62 Barb. 326. A being an indorser on certain notes, some of which are due and some not, B, in consideration that he will pay those notes, promised to pay him a certain sum. A paid the notes. Held, a consideration, binding B to fulfill his promise: L'Amoreux v. Gould, 7 N. Y. 349;

1 Burlington University v. Barrett, 22 Iowa, 60; 92 Am. Dec. 377.

* Whitson v. Fowlkes, 1 Head, 533; 73 Am. Dec. 185.

3 Smith v. Force, 31 Minn. 119. Beall v. Clark, 71 Ga. 818.

5 Barnett v. Bisco, 4 Johns. 235.