« 이전계속 »
“ It is not necessary,” said Lord Alvanley, C. J.," to discuss whether, if A. let land to B., in consideration of which the latter promises to pay the rent to C., his executors and administrators, C. may maintain an action on that promise. I have little doubt however, that the action might be maintained, and that the consideration would be sufficient upon this point. It appears to me that C. would be only a trustee for A., who might for some reason be desirous that the money should be paid into the hands of C. In case of marriage, it is often necessary to make contracts in this manner, and the personal action is given to the trustee for the benefit of the feme covert (9).”
Perhaps it is an argument against giving a stranger to the consideration, a right to sue upon the contract in his own name, that he is, as between himself and the promisee, merely in the light of an intended donee; and no doubt an unexecuted gift, or mere gratuitous promise to confer a benefit, may be revoked (h). In other words, the party who has entered into the contract, and provided the consideration, ought, it seems to be at liberty to withdraw his intended bounty from the third person, before it has been received; and this can only be effected by vesting solely in the former, the right of action thereon.
In the case of deeds and other specialties, inter partes, it is clear that the action must be brought by and in the name of the person who is a party to the instrument, and that a third person, a stranger to the deed, cannot sue thereon; although the covenant be made expressly for his advantage (i).
OF IMPOSSIBLE CONSIDERATIONS.—The consideration is insufficient, if its performance be utterly and naturally impossible (k). From such consideration no benefit can by any implication be conferred on the defendant ; and the law will not notice an act,
(g) Per Lord Alvanley, C. J., in Leese, 4 M. & W. 311. “ Every conPigott v. Thompson, 3 B. & P. 149; dition of a thing impossible is null, and see Chanter v. Leese, 4 M. & W. 295, renders null the agreement which desemble, contra.
pends thereon. The condition of not (h) Ante, 51.
doing an impossible thing, does not (1) 1 Chit. Pl. 6th ed. 3; Lord render null the obligation contracted Southampton v. Brown, 6 B. & C.718. subject to such obligation.” Code Na
(k) 5 Vin. Ab. 110, 11, Condition, poleon, B. 3, tit. 3, ch. 4, s. 1. When (C)a(D)a ; 1 Roll. Ab. 419; Bro. Ab. the performance of a promise is extit. Faits, 37; Co. Lit. 206 a, b; 2 cused, the act being afterwards impos. Bla. Com. S41; Shep. Touch. 164; sible; post, Index, tit
. Performance ; 2 Bro. R. 311; 1 Powell on Contracts, and see Túffnell v. Constable, 3 Nev. 160, per Lord Abinger, Chanter v. & P. 47; 7 Ad. & E. 798, S.C.
the completion of which is obviously ridiculous and impracticable. Upon such a consideration, therefore, no contract can be made, or any claim to damages be supported. As, if the consideration be a promise that A. shall go from Westminster to Rome in three hours; or other matter which no person can by any possibility perform.
And a promise is not binding, if the consideration for making it be of such a nature, that it was not, in fact or law, in the power of the promisee, from whom such consideration moved, to complete such consideration, and confer the full benefit meant to be derived therefrom; at least if the performance of the act would not have been justifiable.
“ Error of a judgment in Shrewsbury court, where the plaintiff declared, he being bailiff to J.S., the defendant, in consideration that he would discharge him of 201. due to J. S., promised to expend 401. in repairing a barge of the plaintiff's ;-verdict and judgment for the plaintiff, upon non assumpsit, were reversed; the consideration being illegal, for the plaintiff cannot discharge a debt due to his master (m).”
A promise was made by the defendant, to the assignee of a bankrupt, when the latter was on his last examination, that in consideration that the assignees would forbear to have the bankrupt examined, and that the commissioners would desist from taking such examination, touching monies alleged to have been received by the bankrupt, and not accounted for, he, the defendant, would pay such monies to the assignees. This promise was held by the court to be illegal, as being against the policy of the bankrupt laws. And Lord Kenyon observed, " I do not say that this is nudum pactum: but the ground on which I found my judgment is this, that every person who in consideration of some advantage, either to himself, or to another, promises a benefit, must have the power of conferring that benefit up to the extent to which that benefit professes to go, and that not only in fact, but in law. Now the promise made by the assignees in this case, which was the consideration of the defendant's promise, was not in their power to perform, because the commissioners had nevertheless a right to examine the bankrupt. And no collusion of the
(m) Harvey v. Gibbons, 2 Lev. 161. solely on the ground of illegality of This decision may, however, be rested consideration.
assignees could deprive the creditors of the right of examination, which the commissioners would procure them. The assignees did not stipulate only for their own acts, but also that the commissioners should forbear to examine the bankrupt; but clearly they had no right to tie up the hands of the commissioners by any such agreement.” And Ashurst, J. observed, " In order to found a consideration for a promise, it is necessary that the party by whom the promise is made, should have the power of carrying it into effect, and secondly, that the thing to be done should in itself be legal. Now it seems to me that the consideration for this promise is void, on both these grounds. The assignees have no right to controul the discretion of the commissioners, and it would be criminal in them to enter into such an agreement, because it is their dnty to examine the bankrupt fully, and the creditors may call on them to perform it. And for the same reason the thing to be done is also illegal (n)."
A declaration stated, that by agreement between the plaintiff and G. G., the plaintiff agreed to sell and deliver to G. G. a lace machine for 2201. to be paid thus: 401. on delivery, and the residue by weekly payments of 11., which were to be paid to the defendant as trustee for the plaintiff, and in case of any default, the plaintiff was to have back the machine, and in consideration of the premises, and of the plaintiff at the request of the defendant appointing him to receive the weekly instalments, the defendant promised to take the machine and pay the balance, should there be any default by G. G. in the weekly payments. It was held that this promise was nudum pactum, and void. And by the court, “ The declaration affects to shew the legal operation of the agreement. Now that states that the agreement bound the defendant to take the machine, not the plaintiff to deliver it. The declaration does not even shew that it was in the plaintiff's to deliver the machine, for it is not stated that he had ever got it back from the original vendee. There certainly is an allegation of willingness to let the defendant take the machine, but that does not appear to have been in pursuance of any pre-existing agreement, nor does the whole import any obligation on the plaintiff to let the defendant take it. The declaration is therefore bad,
(n) Nerot v. Wallace, 3 T. R. 17.
no sufficient consideration for the defendant's promise being shewn (o).
But a promise is not void against the party who makes it, merely because its execution is improbable or difficult; or the impossibility of performing it applies only to the promiser individually, the law not forbidding the thing to be done, and there being no breach of moral duty involved in it. If a party, by his own contract, lay a charge upon himself, he is bound to perform the stipulated act, or pay damages for the non-completion, unless the matter were at the time manifestly and essentially impracticable. The improbability of the performance does not render the promise void. It is the duty of the contracting party to provide against contingencies; and he is presumed to know whether the completion of the duty he undertakes be within his power (p). Some instances of this rule will be given here
It is upon this principle that an engagement upon a sufficient consideration, for the performance of an act even by a third person, is binding, although the performance of such act depends entirely on the will of the latter. Thus a promise to procure the consent of a landlord to the assignment of a lease, is binding (r). And where one of several parties in a firm agreed to introduce the plaintiff (a stranger) into it, it was decided that the agreement was valid; although the other parties were ignorant of its existence, and their assent was of course essential to the admission of the plaintiff (s).
OF CONSIDERATIONS VOID IN PART.- We shall have occasion hereafter to consider the effect of a partial illegality of consideration. With respect to one of several professed considerations for a promise being simply frivolous and insufficient of itself, without being illegal, it appears that this partial defect shall not annul the contract; there being an adequate consideration left to support it; and that in pleading, the insufficient consideration should be omitted as surplusage (t); as if the promise be in consideration not only of the forbearance of a debt due from the defendant to the plaintiff, but also of the forbearance of another claim which could not be sustained (u). So where in assumpsit on the warranty of a horse, the consideration stated for the warranty was, that the plaintiff would purchase the horse for 63l.; but the consideration proved was that the plaintiff would pay that sum, and if the horse was lucky would give the plaintiff 51., or the buying of another horse; it was held not to be a variance to omit the conditional promise, it being too vague to be binding (x). But if a parol promise be entire, and part of it relate to a matter which renders it necessary, under the statute of frauds, that there should be a written agreement, the whole promise is void. The promise being entire, and part of it being void, the whole is defective; so that the plaintiff cannot proceed even to that portion of it which need not be in writing (y). So if part of the consideration be founded in illegality, the entire contract fails, and this whether the consideration be void by statute or at common law (2).
(0) Bates v. Cort, 2 B. & C. 474; 3 (9) And see ante, 57. A condition D. & R. 676, S. C.
to a bond, &c., that it will rain to(p) See Co. Litt. 206 a, n. 1, 179 a; morrow, or that the Pope shall be at Platt. on Cov. 569; 3 Chit. Com. L. Westminster on such a day, is good. 101; Blight v. Page, 3 B. & P. 296, Vin. Ab. Condition (D a), cites 22 note; Horsley v. Wood, 6 T. R. 718, Ed. 4, 26. 719, per Lord Kenyon, C. J.; see post, (r) Lloyd v. Crisp. 5 Taunt. 249. Index, tit. Performance ; and see this (s) NI Neil v. Reid, 2 Moore & S. argued in Tuijnell v. Constable, 3 N. 89; 9 Bing. 68, S.C. & P. 47; 7 Ad. & E. 798, S. C.
OF THE CONSIDERATION IN REGARD TO TIME.—In respect of time, a consideration is either, 1st, executed, or something done before the making of the defendant's promise ; 2ndly, erecutory, or something to be done after such promise ; 3rdly, concurrent, as in the case of mutual promises; and 4thly, continuing (a).
1. A past or executed consideration is not, in general, sufficient to support an express promise, unless such consideration
(1) See 1 Chit. Pl. 6th ed. 300, (y) Mechelen v. Wallace, 2 N. & 262; Comyn on Contr. 20; Vin. Ab. P. 224; 7 Ad. & E. 49, S. C.; Head Actions of Assumpsit (Y); Com. Dig. v. Baldrey, 2 N. & P. 217; 6 Ad. & Action, Assumpsit (B) 13; Bul. N. P. E. 459, S.C.; Levington v. Clarke, 2 147; King v. Sears, 2 C. M. & R. 48; Ventr. 223; Chater v, Becket, 7 T. R. Shackell v. Rosier, 2 Bing. N. C. 646; 201; Thomas v. Williums, 10 B. & C. 3 Scott, 59, S. C.; Nurse v. Wills, 4 664; see Wood v. Benson, 2 C. & J. B. & Ad. 739, ante, 18, 19; Bradburne 94. This is fully considered hereBradburne, Cro. El. 149; per Cur. after, post. in Tisdale's case, id. 758, 759; and in (z) Shackell v. Rosier, 2 Bing. N. C. Coulson v. Curr, id. 849; Crisp v. 646; 3 Scott, 59, S. C., per Tindal, Gamel, Cro. Jac. 128; Best v. Jolly, C. J.; post, chap. 4, sect. 2. 1 Sid. 38; Pikurd v. Coltell, Yelv. (a) See 1 Chit. P. L. 6th ed. 295; 56.
Payne v. Wilson, 7 B. & C. 425, 427,
per Littledale, J.; 3 Chit. Com. L. (1) Guthing v. Lynn, 2 B. & Ad. 70. 232.