falls such redress as he may have against the telegraph company making the alteration.

Some cases hold that as between sender and receiver, the party who selects the telegraph as the means of communication makes it his agent, and should bear the loss, provided there be nothing in the nature of the mistake to cause the receiver to suspect an error.3

The correct doctrine, however, appears to be that of other decisions which hold that an offeror is not bound by an altered telegram, because it does not express his will, and the telegraph company is not an agent with power to create a contractual liability for him by its negligent act.* It cannot be said that the sender of a telegram assumes all risk of error by adopting a customary and in some cases necessary method of communicating his offer. If he was at fault in not causing his message to be repeated, the addressee was equally at fault. The telegraph company is in no sense an agent; it is merely the vehicle of transportation hired to do certain work, and with no authority beyond the scope of its employment. The offeror is not bound by the telegram as delivered, because he never gave his assent to it, nor by the telegram as originally written, because it was never communicated.

3 Ayer v. Western U. Tel. Co., 79 Me. 493; Western U. Tel. Co. v. Shotter, 71 Ga. 760; Haubelt Bros. r. Rea Mill Co., 77 Mo. App. 672. There are dicta to the same effect in Saveland v. Green, 40 Wis. 431; Durkeer. Ry. Co., 29 Vt. 127; Anheuser-Busch Co. v. Hutmacher, 127 III. 652; Howley v. Whipple, 48 N. H. 487; Basons v. Brown, 25 Kans. 410. As to knowledge by the receiver that there was a mistake in the message, see Germain Fruit Co. r. W. U. Tel. Co., 137 Cal. 598; 59 L. R. A. 575.

4 Pepper v. Tel. Co., 87 Tenn. 554; 4 L. R. A. 660; Pegram v. W. U. Tel. Co., 100 N. C. 28; Henkel r. Pape, L. R. 6 Ex. 7. See also Postal Tel. Co. v. Schaefer, 110 Ky. 915; Harrison r. W. U. Tel. Co. (Tex.), 10 A. & E. Corp. Case, 600.

According to Valery (op. cit.), p. 391, neither of these two views is correct, but the cause of the error is to be considered. If it was owing to the negligence of a party, he should bear the loss. The failure to take a customary precaution which would have prevented the mistake is negligence, and there should therefore be no general absolute rule. He refers to a case decided by a Cologne Court in 1856. A., in Cologne, telegraphed an order to a banker in Frankfort to buy certain shares of stock to an amount of more than 200,000 BRANTLY, CONTR.

6

The question whether a telegram accepting an offer, which is changed in the course of transmission to a refusal, makes a contract or not, does not seem to have been presented to the Courts.

florins. When delivered the telegram directed the banker to sell the shares. The sender used the word erkaufen, which was changed into verkaufen. It was ruled that the sender was liable for the loss resulting to the banker, because the telegraph company was the former's agent. Valery contends that he was liable, not for this reason, but because he was negligent in using a word so easily altered. If he had used the word kaufen the mistake would probably not have been made. He refers to another case, in which the sender wrote a telegram ordering 500 kilogrammes of merchandise. The message as delivered was for 5,000. The sender was liable because he used figures instead of words, and thus facilitated the mistake.

CHAPTER II

CONSIDERATION

§ 25. Introductory. The rule of English and American. law is that a consideration is requisite for the validity of every simple contract. The only contracts originally

enforced at common law were contracts under seal and contracts executed on one side where the defendant had received a benefit for which he refused to pay. It was not until the sixteenth century that it was settled that an action would lie for the non-performance of a promise. Before that time an action in the nature of tort would lie for a malfeasance or misfeasance in performing a promise, and this doctrine. was extended by that kind of action of trespass on the case called assumpsit to a mere nonfeasance, i. e., to the breach of a promise. This theory, however, would have made all promises actionable, and in order to establish the doctrine upon a reasonable basis it was laid down in the first instance that only those promises were actionable where the promisor had received a benefit. or, in other words, where there had been a quid pro quo. It was presently felt that a party who relied upon another's promise and suffered a detriment or loss in consequence should have an action, although the party promising had himself received no benefit. And therefore "a larger view was taken of consideration, and it was expressed in terms of detriment to the promisee. This change was a change in the substantive law." In the modern doctrine of consideration the central conception is that of some act or forbearance on the part of the promisee, while originally it was that of some benefit enjoyed by the promisor.

$26.

Definitions-Act or Promise. The consideration for a promise is the legal basis upon which its enforceability

1 Holmes, The Common Law, 271, 268, 287. See also as to the history of consideration Anson on Contracts, ch. 2; Pollock on Contracts, ch. 4.

rests. It is a promise made, or an act done, or forborne by the person to whom the promise is made, contemporaneously with the promise. That promise is given concurrently, in exchange for the act or forbearance or counter promise. A consideration is accordingly defined to be "any benefit to the promisor or any loss, trouble or inconvenience to, or charge upon, the person to whom his promise is made."1

"The consideration of a contract is the quid pro quo, that which the party to whom the promise is made does or agrees to do in exchange for the promise.”2

"Any act of the plaintiff from which the defendant derives a benefit or advantage, or any labor, detriment or inconvenience sustained by the plaintiff, provided such act is performed or such inconvenience suffered by the plaintiff with the consent, either express or implied, of the defendant."

"A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other."4

When a person does, forbears or promises something in exchange for a promise made to him, that is technically called the detriment to the promisee, since it is something that he was not bound to do but does in reliance upon the promise. A father told his son that if the latter would buy a certain factory, he would contribute $5,000 towards the price. Relying on this promise, the son bought the mill, but his father died before making the payment It was considered that this promise was enforceable against the father's estate, since it was supported by a detriment to the promisce. An uncle promised his nephew to pay the expenses of the latter's European tour, and the nephew, relying upon

5

1 Emerson . Slater, 22 Howard, 43.

2 Phoenix Ins. Co. v. Raddin, 120 U. S. 197.

3 This is the definition in Selwyn's Nisi Prius, 8th ed., p. 47, adopted in Laythoarp r. Bryant, 3 Scott, 250, and Carlille. Carbolic Smoke Ball Co. [1893], 1 Q. B. 271.

4 Currie . Misa, L. R. 10 Exch. 162, cited in Anson, Contr. 87. 5 Steele . Steele, 75 Md. 477, citing Skidmore v. Bradford, L. R. 8 Eq. 134, which is in point.

the promise, made the trip, expending his own money, and it was held that he was entitled to recover that sum from the estate of his uncle.

But when a man agrees to buy a thing which is in fact his own property, the promise is without consideration." In such case, there is no detriment to the promisee because he only does what he was already bound to do when he surrenders to the true owner his property. There is no benefit to the promisor because he gets nothing more than he was entitled to in consequence of his promise. So a promise not to foreclose a mortgage, which is due, is without consideration, because in such case there is neither benefit to the promisor nor detriment to the promisee.8

When the promise is given in exchange for an act or forbearance, the consideration for it is said to be executed. When the promise is given in exchange for a counter-promise, the consideration is called executory. In the former case, the consideration is present, and is either an act for a promise or a promise for an act. In the latter, it is something to be done in the future. Strictly speaking, however, every consideration is executed, since the giving of a promise. is in legal effect the same thing as the doing of an act. The so-called past consideration is explained subsequently.

Good and valuable consideration, The consideration as above explained is called valuable. A good consideration, which is defined to be that of blood or natural love and affection, as when a man grants an estate to a near relation, is sufficient in a deed or gift, but not in an executory contract. This so-called good consideration supports the deed

6 Devecmon r. Shaw. 69 Md. 199.

7 Fink . Smith, 170 Pa. 124. So a promise to give up property wrongfully withheld from the owner is not a consideration. Crosby r. Wood, 6 N. Y. 369; Cowper r. Green, 7 M. & W. 633. This of course does not apply to a promise by a third person to procure the return of stolen property. Schirm r. Wieman. 103 Md. 541.

8 Gaither . Slack. 89 Md. 727.

9 King . Thompson, 9 Pet. 204; Dugan r. Gittings, 3 Gill, 138.