other person acquires a corresponding legal right, which it would violate good conscience for the latter under the circumstances to retain. The word "surprise" is used interchangeably with "accident" to designate the emergencies giving rise to accidents, both words signifying a detrimental situation wherein a party is placed unexpectedly, and against which ordinary prudence would not have guarded.259 And where an "accident" occurs which was not anticipated and provided for when the contract was made, and which leaves one of the parties without remedy in a court of law, the jurisdiction of a court of equity may then be invoked to give relief against the accident.200 But it is said that the "surprise" which will induce equity to interfere and cancel a contract must consist of an overpowering of the will,—a taking away of volition,—so that the act was not that of the party, but of others,2 261 and that one is not entitled to relief against an instrument on the ground of surprise, when he had the advice of counsel in doing the act complained of.262 But when some mental weakness or incapacity for business affairs on the part of the complaining party is shown, and there is ground to believe that he did not understand what he was doing, it seems that equity may interfere on the ground of surprise, even though there is nothing to show any fraud or duress.263

259 State v. Innes, 137 Mo. App. 420, 118 S. W. 1168. And see Engler v. Knoblaugh, 131 Mo. App. 481, 110 S. W. 16; West Portland Homestead Ass'n v. Lownsdale (D. C.) 17 Fed. 614; Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742; Zimmerer v. Fremont Nat. Bank, 59 Neb. 661, 81 N. W. 849.

260 City of Bloomington v. Smith, 123 Ind. 41, 23 N. E. 972, 18 Am. St. Rep. 310; Voliva v. Cook, 262 Ill. 502, 104 N. E. 711.

261 McRae v. Malloy, 93 N. C. 154.

262 Sandlin v. Ward, 94 N. C. 490.

263 Hoagland v. Titus, 16 N. J. Eq. 44.

CHAPTER V

WANT OR FAILURE OF CONSIDERATION

157. Original Want of Consideration.

158. Failure of Consideration.

159. Partial Failure of Consideration.

160. Failure of Consideration from Impossibility of Performance. 161. Failure of Consideration Resulting from Operation of Law or from Change in the Law.

162. Instrument Becoming Functus Officio by Performance of Conditions.

163. Same; Payment or Discharge of Obligation.

164.

Depreciation in Value of Consideration.

165. Forged and Counterfeit Documents and Stolen Goods.

166. Want of Value No Ground for Rescission Where Consideration is Delivered as Stipulated.

167. Chancing Bargains and Speculative Purchases.

168. Grants in Consideration of Support and Maintenance.

§ 157. Original Want of Consideration. An entire want of consideration to support a contract or conveyance, existing at the time it was made, will be ground for its rescission or cancellation, provided no rights of third parties have intervened, and provided that any benefits received under it can be restored, so that the parties can be replaced in their original positions. Thus, equity will not enforce against the estate of the maker the collection of notes under seal in the hands of the payee, which were given to him by the decedent of his own free will and accord, simply with the desire of benefiting him and without consideration. And where complainant executed a deed to defendant without consideration, for the purpose of depriving himself of the power of squandering the property under the influence of his wife, and not for any fraudulent purpose, he is entitled to a decree canceling the deed at his election. Again, a contract to give security for a note,

1 Baltimore & O. R. Co. v. Evans, 188 Fed. 8, 110 C. C. A. 158; Merchant v. Bowyer, 3 Tex. Civ. App. 367, 22 S. W. 763; Ricketts v. Tompkins, 73 N. J. Eq. 552, 68 Atl. 1075. See Copley v. Flint, 6 Rob. (La.) 54. The case of revoking a gift or donation stands upon a different footing and will be considered in a later chapter. See, infra, §§ 497-511.

2 Selby v. Case, 87 Md. 459, 39 Atl. 1041.

8 Bybee v. Bybee, 45 Wash. 187, 87 Pac. 1122. But as to the gen

made after the execution of the note, may be avoided for want of consideration. And where a person who owned a quantity of iron ore which was stored on a railroad dock gave an order to the railroad company to deliver a part of it to a furnace company, merely as an accommodation to the latter and without any consideration, it was held that the order could be revoked at any time before the furnace company took possession."

A case of original and entire want of consideration, justifying rescission as above stated, may arise where an article sold is entirely worthless. And a parallel case arises. where a creditor received in full payment and discharge of the debt a note of a third person, who is insolvent, both the debtor and creditor acting in ignorance of that fact." Where the subject of sale is an invention or a patent, it must be shown to be entirely without value (not merely of doubtful value) before a want of consideration can be said to exist. Thus, an invention is not valueless, so as to avoid a contract for its sale, where it does not appear that it is not patentable, and the purchaser, though testifying that, in its present condition, it is impracticable, admits that "the idea is there" and might be used with some alteration.3 And as to patents, it has been said: "Whether on the sale of a patent which proves to be worthless there is a failure of consideration, depends not on the utility or pecuniary value of the patent, but solely on its validity. This validity may be questioned on such an issue, in the same manner as in a suit for infringement, and it may be shown that the patent ought not to have been granted."

Again, a want of consideration may arise out of the fact that a security given in exchange for a thing of value is

eral rules which govern the revocability of trust deeds and settlements, see, infra, §§ 358–368.

4 Roberts v. Waters, 9 Iowa, 434.

5 Staake v. Pennsylvania R. Co., 231 Pa. 466, SO Atl. 1102.

6 Coca-Cola Bottling Co. v. Anderson, 13 Ga. App. 772, 80 S. E. 32. So where an entirely worthless note is given in exchange for land. Rutherford v. White (Tex. Civ. App.) 174 S. W. 930.

7 Roberts v. Fisher, 65 Barb. (N. Y.) 303.

8 Jones v. Reynolds, 120 N. Y. 213, 24 N. E. 279.

91 Benj. Sales (Corbin's edn.) § 620, note, citing Nash v. Lull, 102 Mass. 60, 3 Am. Rep. 435.

void in law, as, for example, a note or bond and mortgage given by a married woman alone in a jurisdiction where wives are not permitted to execute such instruments without the joinder of their husbands.10 And so, where one deeds property in exchange for a lease of an academy, which lease is executed to him by trustees in violation of the terms of the trust deed under which they hold the academy, not only should the lease be set aside, but also the deed should be canceled.11 But a somewhat antagonistic ruling appears in a case in New York, in which a purchaser of land gave in part payment the note of a corporation, executed by himself as president, but without any authority from the corporation. It was held that this was no ground for rescinding the sale at the suit of the vendor, where it also appeared that the purchaser gave the note in good faith and believing that he had the right to execute it, and that the vendor's only remedy was an action against the purchaser for the amount of the note.12 And the fact that one of the parties to a contract for the exchange of certain parcels of land, after securing a removal of the incumbrances thereon, borrowed the amount necessary to do this, as to his parcel, out of funds held by him in the capacity of a guardian, without first obtaining leave of court so to do, is no ground upon which the other can base an action to cancel the contract.1 13

Where the want of consideration is entire, but extends only to a part of that which is the subject of the contract, rescission is not always the proper remedy. Thus, one who has sold and delivered goods and accepted payment cannot rescind the contract and replevy the goods on the ground that the goods delivered included some which were not purchased, but his only right is to take out the excess in such manner as not to inconvenience the purchaser.11 And where it was stipulated, in a contract for the sale of land, that a deduction should be made from the price agreed on

10 Heacock v. Fly, 14 Pa. 540; Foxworth v. Bullock, 44 Miss. 457. 11 Hendrix College v. Arkansas Townsite Co., 85 Ark. 446, 108 S. W. 514.

12 Miller v. Reynolds, 72 Hun, 482, 25 N. Y. Supp. 642.

18 Kraner v. Chambers, 92 Iowa, 681, 61 N. W. 373.

14 De Graff v. Byles, 63 Mich. 25, 29 N. W. 487.

in case part of the land should be lost, and it appeared that such stipulation was inserted with reference to a claim which turned out to be much larger than the contractor supposed, it was held, the value of the residue not being materially impaired for the purpose for which it was bought, and there being no evidence of fraud or imposition, that the contract should not be rescinded.15

§ 158. Failure of Consideration.-A failure of consideration is to be distinguished from an original want of consideration. As applied to notes, contracts, conveyances, and other transactions, the former term does not mean that no consideration ever existed, but imports that a consideration, existing at the inception of the transaction and actually or supposedly good, has since become worthless or has ceased to exist, or has been extinguished, partially or entirely.10 And an entire failure of consideration is sufficient ground in equity for the rescission of a contract or the cancellation of a conveyance." This rule is well recognized in equity jurisprudence, and moreover it is enacted into statute law in some of the states, as in the codes which provide that "a party to a contract may rescind the same

..if, through the fault of the party as to whom he rescinds, the consideration for his obligation fails in whole or in part; if such consideration becomes entirely void from any cause; or if such consideration, before it is rendered

15 Harris v. Granger, 4 B. Mon. (Ky.) 369.

16 Shirk v. Neible, 156 Ind. 66, 59 N. E. 281, 83 Am. St. Rep. 150; Crouch v. Davis, 23 Grat. (Va.) 75; Williamson v. Cline, 40 W. Va. 194, 20 S. E. 920.

17 Warner v. Daniels, 1 Woodb. & M. 90, Fed. Cas. No. 17,181; Pettibone v. Roberts, 2 Root (Conn.) 258; Steele v. Hobbs, 16 Ill. 59; Woodward v. Fels, 1 Bush (Ky.) 162; Robinson v. Bright, 3 Metc. (Ky.) 30; Mechanics' & Traders' Ins. Co. v. McLain, 48 La. Ann. 1091, 20 South. 278; Spring v. Coffin, 10 Mass. 31; Griggs v. Morgan, 9 Allen (Mass.) 37; Hotchkiss v. Judd, 12 Allen (Mass.) 447; Julius Kessler & Co. v. Parelius, 107 Minn. 224, 119 N. W. 1069, 131 Am. St. Rep. 459; Leach v. Tilton, 40 N. H. 473; Chapman v. City of Brooklyn, 40 N. Y. 372; Smith v. McCluskey, 45 Barb. (N. Y.) 610; Putnam v. Westcott, 19 Johns. (N. Y.) 73; Miller v. Shelburn, 15 N. D. 182, 107 N. W. 51; French v. Millard, 2 Ohio St. 44; Darst v. Brockway, 11 Ohio, 462; Carter v. Walker, 2 Rich. (S. C.) 40; Morrill v. Aden, 19 Vt. 505; Hurd v. Hall, 12 Wis. 112. Compare Soper v. Stevens, 14 Me. 133.