them up after such weighing in as good condition as before. "The defendant" said Lord Denman “had some reason for wishing to weigh the boilers, and he could do so only by obtaining permission from the plaintiff, which he did obtain by promising to return them in good condition. We need not inquire what benefit he expected to derive" (a). So parting with the possession of a document, though it had not the value the parties supposed it to have (b), and the execution of a deed (c), though invalid for want of statutory requisites (d), have been held good considerations. In the last mentioned case the justice of the decision was very plain: the deed was an apprenticeship indenture which omitted to set forth particulars required by the statute of Anne then in force (e): the apprentice had in fact served his time, so that the benefit of the consideration had been fully enjoyed. In like manner a licence by a patentee to use the patented invention is a good consideration though the patent should turn out to be invalid (f). In a late case in the Supreme Court of the United States a release of a supposed right of dower, which the parties thought necessary to confirm a title, was held a good consideration for a promissory note (g). Same rule Decided cases in equity to the same effect are not wanting. in equity. It has been held that a transfer of railway shares on which nothing has been paid is a good consideration (h) ;. and that if a person indebted to a testator's estate pays the probate and legacy duty on the amount of the debt, this is a good consideration for a release of the debt by the residuary (a) Bainbridge v. Firmstone, 8 A. & E. 743. (b) Haigh v. Brooks (Q. B. and Ex. Ch.), 10 A. & E. 309, 320, 334. Or letting the promisor retain possession of a document to which the promisee is entitled: Hart v. Miles, 4 C. B. N. S. 371, 27 L. J. C. P. 218. (c) Cp. Jones v. Waite, 9 Cl. and F. 101. (d) See note (b), p. 189. legatees (a): a strong case, for this view was an afterthought to support a transaction which was in origin and intention certainly gratuitous, and in substance an incomplete voluntary release; the payment was simply by way of indemnity, it being thought not right that the debtor should both take his debt out of the estate and leave the estate to pay duty on it. The consent of liquidators in a voluntary winding-up to a transfer of shares is a good consideration for a guaranty by the transferor for the payment of the calls to become due from the transferee (b). An agreement to continue-i.e. not to determine immediately -an existing service terminable at will, is likewise a good consideration (c). The principle of all these cases may be summed up in the statement made in so many words by the judges in more than one of them, that the promisor has got all that he bargained for. There has been another rather peculiar case in equity which was to this effect. Ant agreement is made between a creditor, principal debtor, and surety under a continuing guaranty, by which no new undertaking is imposed on the surety, but additional remedies are given to the creditor, which he is to enforce if requested to do so by the surety. Held that if by his own negligence the creditor deprives himself of the benefit of these remedies, the surety is discharged. The real meaning of what is there said about consideration seems to be that as between the creditor and the surety it is not material (d). Closely connected in principle with the fore- Consideragoing class of cases, though not identical with them, is the be continrule that the consideration for a promise may well be con- gent. tingent, that is, it may consist in the doing of something (a) Taylor v. Manners, 1 Ch. 48, by Turner, L. J. dub. Knight Bruce L. J. (b) Cleve v. Financial Corporation, 16 Eq. 363, 375. (c) Gravely v. Barnard, 18 Eq. 518. (d) Watson v. Allcock, 4 D. M. G. 242. The guaranty was determinable by notice from the surety, and it was suggested by way of sup tion may Inadequacy plus see Chap. XI. by the promisee which he need not do unless he chooses, but which being done by him the contract is complete and the promise binding. If a tradesman agrees to supply on certain terms such goods as a customer may order during a future period, he cannot sue the customer for not ordering any goods, but if the customer does order any the condition is fulfilled, the consideration is perfected, and there is a complete contract which the seller is bound to perform (a). Inadequacy of consideration coupled with other things other things may however be of great importance as evidence of fraud, in Equity: &c., when the validity of a contract is in dispute: and it has been considered (though the better opinion is otherwise) to be of itself sufficient ground for refusing specific performance. This subject will be examined under the head of Undue Influence, Ch. XI., post. Reciprocal as con Reciprocal promises may be and in practice constantly promise are the consideration for one another, and so constitute a sideration. binding contract. It is said that in order to be a good possible: consideration a promise must be a promise to do something qu. extent which the promisor has the means of performing; but this Must be of rule. proposition, though affirmed by an authority little short of judicial (b), seems unwarrantably wide. The true limitation, it is submitted, is that the thing promised must be in itself possible, and such as the promisor is legally competent to perform; this last point is what the cases cited for the general statement really go to show, though certainly there are some dicta much more largely expressed (c). In this (a) G. N. Ry. Co. v. Witham, L. R. 9 C. P. 16. Contra a recent case in New York (Benjamin on Sale, 55), and see Mr. Wald's note here. Certainly there is some difficulty in accepting the doctrine in this form: and the better view seems to be that the so-called agreement of the seller is really a continuing offer which, while unrevoked, becomes a binding promise when accepted by an order of goods in conformity with its terms. (b) 2 Wms. Saund. 430. (c) Haslam v. Sherwood, 10 Bing. 540, Nerot v. Wallace, 3 T. R. 17, where the dicta of Lord Kenyon, C. J. and Ashhurst, J. are those meant in the text. Buller and Grose, JJ. confined their judgments to the true ground of the case, viz. that the agreement then in question was illegal as being against the policy of the bankrupt laws. form the proposition is completely covered by the general law touching impossible and unlawful agreements, and we know of nothing that requires us to lay down any wider rule as part of the distinct learning of consideration. There is certainly no general rule that a promise cannot be sued on unless the promisor had in fact the means of performing it when he made it; and if we said that the undertaking of a legal liability is not to be deemed a consideration unless the liability be substantial, we should be setting up in another shape the often exploded supposition that the adequacy of the consideration can be inquired into. enforce It is certain however that a promise which is to be a Must be good consideration for a reciprocal promise must be such as able. can be enforced: it must therefore be not only lawful and in itself possible, but reasonably definite. Thus a promise by a son to his father to leave off making complaints of the father's conduct in family affairs is no good consideration to support an accord and satisfaction, for it is too vague to be enforced (a). And upon a conveyance of real estate without any pecuniary consideration a covenant by the grantee to build on the land granted such a dwelling-house as he or his heirs shall think proper is too vague to save the conveyance from being voluntary within 27 Eliz. c. 4 (b). be of a thing one bound For the same reason, neither the promise to do a thing Must not nor the actual doing of it will be a good consideration if it is a thing which the party is already bound to do either is already by the general law or by a subsisting contract with the other generally party (c). It is obvious that an express promise by A. to B. or to the to do something which B. can already call on him to do can to do. in contemplation of law produce no fresh advantage to B. or detriment to A. But the doing or undertaking of any promisee But may be of a thing one is bound to a third person to do. thing beyond what one is already bound to do, though of the same kind and in the same transaction, is a good consideration. A promise of reward to a constable for rendering services beyond his ordinary duty in the discovery of an offender is binding (a): so is a promise of extra pay to a ship's crew for continuing a voyage after the number of hands has been so reduced by accident as to make the voyage unsafe, so that the crew are not bound to proceed under their original articles (b). Again there will be consideration enough for the promise if an existing right is altered or increased remedies given. Thus an agreement to give a debtor time in consideration of his paying the same interest that the debt already carries is inoperative, but an agreement to give time or accept reduced interest in consideration of having some new security would be good and binding. The common proviso in mortgages for reduction of interest on punctual payment-i.e. payment at the very time at which the mortgagor has covenanted to pay it-seems to be without any consideration, and it is conceived that if not under seal such a proviso could not be enforced (c). Again the rule does not apply if the promise is in the nature of a compromise, that is if a reasonable doubt exists at the time whether the thing promised be already otherwise due or not, though it should be afterwards ascertained that it was so. The reason of this will be more conveniently explained, so far as it needs explanation, when we speak presently of forbearance as a consideration. In the case where the party is already bound to do the same thing, but only by contract with a third person, there is some difference of opinion. But there seems to be no solid reason why the promise should not be good in itself, and therefore a good consideration. It purports to create (a) England v. Davidson, 11 A. & E. 856. (b) Hartley v. Ponsonby, 7 E. & B. 872, 26 L. J. Q. B. 322. (c) This could be at once provided against, however, if so desired, by fixing the times for "punctual payment" a single day earlier than those named in the mortgagor's covenant. |