able.1

"When one party," said the Court in this case, "agrees for the performance of an act which will afford him pleasure, gratify his ambition, please his fancy or express his appreciation of services another has done him, his estimate of the value should be left undisturbed unless indeed there is evidence of fraud. There is in such a case absolutely no rule by which the Courts can be guided if once they depart from the value fixed by the promisor." The promise by A. that if B. will marry and have a child by his wife, he will pay him a certain sum, is a valid contract, and upon the happening of the contingency B. is entitled to recover the amount promised. A promise by a husband and wife that if another's child would stay with them until of age, they would care for him and leave him their property, is valid.3

An uncle promised to pay his nephew $5,000 if the latter would "refrain from drinking liquor, using tobacco, swearing and playing cards or billiards for money until he should become twenty-one years of age." Upon the performance of his part of the agreement by the nephew, it was held that he was entitled to recover the promised sum from the executor of his uncle.* An aunt said to her nephew: "I will give $500 if you will come to my funeral." He promised to attend, and it was held to be a valid consideration, being a promise for a promise.5

Changing one's name at the request of another is a consideration for a promise to leave a legacy. A promise to render services in the future supports a promise to pay for past services, as well as those to be rendered. An agreement by the shopkeepers in a certain town to close their

1 Wolford . Powers, 85 Ind. 294.

2 Garvin v. Cromatie, 11 N. C. 174.

3 Neal r. Gilmore, 79 Pa. 421. But see Wood r. Evans, 113 Ill. 186. 4 Hamer . Sidway, 124 N. Y. 538; 12 L. R. A. 463. See also Lindell r. Rokes, 60 Mo. 249.

5 Earler. Angell, 157 Mass. 294. It might be questioned in such case whether there was an intention to create a legal relation.

6 Babcock . Chase, 92 Hun, 267.

7 Graham r. Stanton, 177 Mass. 350.

shops at a certain hour in summer is supported by the mutual promisess

8

Where the parties to a pending cause agree to waive their right to a jury trial and submit it to the determination of the Judge, the respective promises are the consideration for each other.9

Where the plaintiff attended a certain school at the instance of the defendant, who promised to pay the school fees, the promise is supported by a valuable consideration.10

Consideration and Motive.

If a man makes a prom

$ 32. ise which is supported by such a consideration as has been explained to be sufficient, the law does not inquire into his motive for making it. His real motive may be one thing and what the law regards as the consideration something quite distinct.1 The motive of an agreement is the particular circumstance or reason which induces a party to contract. It makes no difference whether this motive was true or false, good or bad, except in cases concerning the reality of consent, such as fraud or mistake. The consideration is the particular circumstance which causes a promise to be binding. This has nothing to do with the motive of the promisor in making the promise. When you ask a medical man to attend your servant, who is ill, your motive may be one of humanity, or it may be a desire not to lose a good cook, or it may be merely to avoid the annoyance of having him die in your house. The law does not concern itself with your motive. The consideration for your promise to pay the physician is that he attended your servant at your request.

Sometimes the law attributes to an external fact the power of making a promise binding. That act or fact is the efficient cause of the obligation. This is the case with formal contracts, as will be explained in the next chapter.

8 Stovall v. McCutchen, 107 Kỵ. 580; 47 L. R. A. 287.

9 Lanahan . Heaver, 77 Md. 609.

10 Young v. Boyd, 107 Md. 449.

1 See Philpot . Ganninger, 14 Wallace, 570.

§ 33.

Moral Obligation.

It was formerly held that when a man was under a moral obligation, which no Court of law or equity would enforce, and promised, the honesty and rectitude of the thing was a consideration.1 The word "obligation" in this connection is not used in its technical sense, as corresponding with a legal right, but rather as the motive of a promise.

These cases have long since been overruled, and it is now well established that a moral obligation, arising from past benefits or from a pious wish to fulfill a duty, dictated by gratitude or benevolence, but such as the law does not enforce, is not a consideration for a promise.2 If you should say to a man, I was anhungered and you fed me, I was naked and you clothed me, and now that you have yourself fallen upon evil days, I promise to give you $100,-that promise is invalid because without a consideration. It is not given in exchange for an act, forbearance or counter-promise on the part of the promisee. So the moral obligation of a son to pay for the support of his mother is not a consideration for his promise to reimburse a person who had provided for her without his request.3

But when there has been some pre-existing legal obligation which cannot be enforced on account of the statute of limitations or a discharge in bankruptcy, etc., or when there was some duty which a Court of equity would enforce, in such cases an express promise to pay affords a remedy at law.*

1 Hawkes

. Saunders, Cowper, 289, per Lord Mansfield; State v. Reigart, 1 Gill, 1; Drury v. Briscoe, 42 Md. 162.

2 Eastwood . Kenyon, 11 Ad. & E. 438; Ingersoll v. Martin, 58 Md. 75; Linz v. Schuck, 106 Md. 220; Parsons . Teller, 188 N. Y. 318; Hart r. Strong, 183 Ill. 349. In a few States a moral obligation is considered sufficient to support a promise. Anderson v. Best, 176 Pa. 498. A promise to pay for services rendered under a void contract was held to be supported by the moral obligations in Muir r. Kane, 55 Wash. 131; 26 L. R. A. (N. S.) 520. To the contrary is Bagnole v. Madden, 76 N. J. L. 255. Many cases relating to moral obligation as a consideration are collected in the notes to Muir r. Kane, supra, and Trimble . Rudy, 53 L. R. A. 353.

3 Davis . Anderson, 99 Va. 620; Inhabitants of Freeman v. Dodge 98 Me. 531; 66 L. R. A. 396.

4 Callahan . Linthicum, 43 Md. 97; Condon . Barr, 49 N. J. L. 53; see post, § 46.

Whether a promise by a woman after becoming a widow to pay a debt contracted during marriage, when the obligation was void, is enforceable or not has been differently decided. But the weight of authority is in favor of the view that, since her original contract was not merely voidable or unenforceable but was absolutely void, her subsequent promise is based merely on a moral obligation and is therefore invalid.5

Other illustrations of the inadequacy of a moral obligation are subsequently set forth in the discussion of past con siderations.

$34. Subscriptions. In the case of a voluntary subscription for a charitable, religious or educational purpose, some few cases hold that the mutual promises of the subscribers are the consideration for each other, being in the nature of contracts for the benefit of a third person.1 This ruling is clearly inconsistent with the real nature of the transaction. The subscribers do not promise each other. Another view is that the person or corporation to which the subscription is given impliedly agrees to use the fund for some particular purpose and this implied promise supports the promise of the subscriber.2

But the prevailing doctrine and the only one consistent with the theory of consideration is that a voluntary subscription is not enforceable unless money has been expended, or liability incurred, or some work done, upon the faith of it.3

5 Meyer v. Howarth, 8 A. & E. 467; Musick v. Dodson, 76 Mo. 624; Kent v. Rand, 64 N. H. 45 Contra: Goulding v. Davidson, 26 N. Y. 604 Holden . Banes, 140 Pa. 63.

1 Christian College v. Hendley, 49 Cal. 347; Baptist University v. Borden, 132 N. C. 500; Wilson v. First Church, 56 Ga. 554.

2 Helfenstein's Estate, 77 Pa. 328; Irwin v. Webster, 56 Ohio, 9; 36 L. R. A. 240; Simpson Centenary College v. Bryan, 50 Iowa, 293; Troy Academy v. Nelson, 24 Vt. 189; Albert Lea College v. Brown, 88 Minn. 532; 60 L. R. A. 873.

3 Gittings . Mayhew, 6 Md. 114; First Presby. Church . Cooper, 112 N. Y. 517; 3 L. R. A. 468; Board of Foreign Missions v. Smith, 209 Pa. 361; Cottage St. Church . Kendall, 121 Mass. 528; Martin v. Miles, 179 Mass. 114; Pratt v. Baptist Society, 93 Ill. 475; Beatty v. Western College, 177 Ill. 280; Richelieu Hotel Co. v. Internat.

WHEN A PROMISE IS A CONSIDERATION

95

$ 35. Promise as a Consideration-Mutuality. A promise to do or forbear is a sufficient consideration, and in an executory contract, the reciprocal promises are the consideration for each other. For instance, a promise to manufacture articles is binding because it is supported by the counter promise to pay for them when made. An agreement between the first and second endorsers of an accommodation paper to share a loss equally between them is enforceable.1

When the contract is executory; i. e., when something remains to be done on both sides, although there may have been a part performance on one side, an agreement of the parties to rescind and end it is effectual, because the reciprocal promises of release support each other. But after a contract has been fully performed on one side, an agreement to rescind it and release the other party from the obligation to perform on his side would be without consideration.2

So

Co., 140 Ill. 248. The liability must be incurred before the death of the subscriber, for that revokes his offer. Twenty-third St. Church v. Cornell, 117 N. Y. 604; 6 L. R. A. 807. It is said in some cases that a subscription conditioned upon the collection by the promisee of a certain sum within a designated time is binding when that is done. Kentucky Ed. Society v. Carter, 72 Ill. 47; La Fayette County r. Magoon, 73 Wis. 627; 3 L. R. A. 761. And see Robinson v. Nutt, 185 Mass. 345, where it was held, according to the Syllabus: "An agreement in writing to pay to the sinking fund committee of a certain parish $5 in each month for five years in order to help in the payment of the debt of the parish, on condition that the whole amount of $10,000 shall be in like manner subscribed or otherwise provided for and other requirements be performed, is a formal offer, which, on performance of the conditions by the committee, becomes binding,. such performance being a good consideration for the subscriber's promise." But in Keuka College v. Ray, 167 N. Y. 100, it is said that those agreements "which are conditioned merely upon all subscriptions for a like purpose aggregating a certain amount by a certain day are deemed to lack a legal consideration to make them enforceable. The doctrine, however, may be regarded as well established that if money is promised to be paid upon the condition that the promisee will do some act or perform certain services, then the latter, upon performance of the conditions, may compel payment."

1 Philips v. Preston, 5 Howard, 278.

2 Kidder . Kidder, 33 Pa. 268; Foster . Dawber, 6 Exch. 839, 851; Williams r. Stern, L. R. 5 Q. B. D. 296. But under some circumstances an agreement before breach to rescind a unilateral contract is valid without consideration. See post, Part vi, ch. 1.