son, is not what the son's labor would have been worth to the father, but what the son, had he been of age to contract, would have been entitled to from the employer.(*) So for breach of contract to teach a slave a trade, the measure of damages was held to be the additional value he would have had from knowing the trade.() This principle was lost sight of in a Missouri case. (°) The plaintiff agreed to help cut the defendant's wheat, for which the defendant was to help cut the plaintiff's oats; the plaintiff performed his part of the contract, the defendant did not perform his part. The plaintiff sued on a quantum meruit for the value of his services, and also for damages for failure to help cut the oats. It was held that damages for failure to help cut the oats could not be recovered, but the value of the plaintiff's services was allowed as the measure of damages. This was an allowance of the consideration. $611. Inadequacy of consideration.-* It is to be observed that mere inadequacy of consideration is no objection to a contract. Some consideration is requisite, but the sufficiency of the consideration cannot be inquired into. So it has been contended that a guarantor of negotiable paper receiving a trifling percentage for his guaranty, could not be held liable for the whole face of the paper; but on the same ground he was held liable;1 and the rule has been repeatedly declared, that the value of the services or the amount of the consideration is of no importance, where a stipulated sum is agreed to be paid for the performance of a specific service.' It is only where fraud, 1 Oakley v. Boorman, 21 Wend. 588. Hamilton College v. Stewart, I N. Y. 581. (a) Weeks v. Holmes, 12 Cush. 215. § 612. UNCONSCIONABLE AGREEMENTS. 259 mistake, illegality, or oppression intervenes, that the consideration can, in this respect, be inquired into.** § 612. Unconscionable agreements.-* There is a class of decisions which may at first sight appear to be opposed to the general rule, that the contract furnishes the measure of damages. In an early case, brought on an assumpsit to pay for a horse a barley-corn a nail, doubling it every nail, with an averment that there were thirtytwo nails in the shoes of the horse, which, being so doubled every nail, came to five hundred quarters of barley, the judge who tried the cause directed the jury to disregard the contract, and to give the value of the horse in damages, which was £8, and so they did.' The principle of this decision is, that if the agreement be unconscionable, the court will render such damages as may appear reasonable, without being bound by the terms of the contract. So in Massachusetts, where a note had been given to stay execution, payable in oats at 20 cents per bushel, when in fact they were worth 37 cents, it was held that the jury might disregard the contract on the James v. Morgan, 1 Levintz III. In another case, a somewhat similar contract came up on demurrer. The plaintiff declared, on agreement, that the defendant, in consideration of 25. ɓd. in hand paid, and of £4 17s. 6d. to be paid on performance, agreed to deliver two grains of rye corn on Monday, the 29th of March, and four grains on the next Monday, and so doubling quolibet alio die Luna for one year. The defendant demurred, saying, "that the agreement appeared, upon the face of it, to be impossible, the rye to be delivered amounting to such a quantity as all the rye in the world was not so much; and being impossible, was void, and the defendant not bound to perform it." But after argument the court thought otherwise, Powell, J., saying: "That though the contract was a foolish one, it would hold in law, and the defendant ought to pay something for his A question arose on the meaning of the contract-the defendant insisting that quolibet alio die Luna meant every Monday, but Lord Holt said it must be construed "every other Monday." This made a material difference in the possibility of executing the contract; for if the quantity were doubled thirty times, it would have reached 125 quarters; if fifty-two, it would have amounted to 524,288,000 quarters. Thornborow v. Whitacre, 2 Lord Raym. 1164. And the principle of James v. Morgan was approved of by Lord Chancellor Hardwicke, in Earl of Chesterfield v. Jansen, I Wils. 286, 295. ground that it was unconscionable, and fix the value of the oats at 20 cents. So on an action brought on a promise of £1,000 if the plaintiff should find the defendant's owl, the court declared, though the promise was proved, that the jury might mitigate the damages.* In a recent case in Massachusetts, the earlier cases cited above are overruled, and the right of a court of law to modify an unconscionable contract has been denied.(*) The assertion of the right to sever the contract, to declare a part of it unconscionable and oppressive, and to decree performance of the remainder, is the exercise of an equitable power of a high order, the incautious exercise of which might lead to very dangerous results. These cases might more properly be brought within the rule governing cases of fraud and oppression. If the contract is on its face so extortionate and unjust as to bear evident marks of deceit, then, instead of wasting time in trying to reduce the relief to the standard of strict justice, the whole agreement should be pronounced void. Under the modern system of pleading and the fusion of the two systems of Law and Equity, either party is usually able, in cases of unconscionable agreements, to obtain such equitable relief as he may be entitled to, either in the way of reforming or avoiding the contract. § 613. General rule includes profits.-On breach of contract, the plaintiff, as has been seen, recovers the benefit of 1 Cutler v. How, 8 Mass. 257; Cutler v. Johnson, 8 Mass. 266; Baxter v. Wales, 12 Mass. 365; Leland v. Stone, 10 Mass. 459. And Lord Mansfield used analogous language in regard to the action for money had and received. "Shall a man," said his lordship, "in an action for money had and received, which is an equitable action, and founded in conscience, recover such an unmeasurable and exorbitant demand? Most clearly he shall not." Jestons v. Brooke, 2 Cowp. 793; and Floyer v. Edwards, 1 Cowp. 112. Bacon Abr. Damages, D. (*) Lamprey v. Mason, 148 Mass. 231. § 614. MASTERTON V. THE MAYOR. 261 the contract, so called; that is, the value of the property or services secured to the plaintiff by the contract, less the expense he would have been at in obtaining the benefit.(*) This is generally in the nature of direct profits, to the recovery of which, as we have seen, subject to the rule that they must be certain, no objection exists. 614. Masterton v. The Mayor. The leading case upon this subject is Masterton v. Mayor of Brooklyn.' * In an action of covenant brought against the authorities of the city of Brooklyn, it appeared that in January, 17 Hill 61. (*) Philadelphia, W. & B. R.R. Co. v. Howard, 13 How. 307; United States v. Speed, 8 Wall. 77; United States v. Smith, 94 U. S. 214; Hinckley v. Pittsburgh B. S. Co., 121 U. S. 264; Cook v. Hamilton County, 6 McLean, 612; Greenwell v. Ross, 34 Fed. Rep. 656; George v. Cahawba & M. R.R. Co., 8 Ala. 234; Lecroy v. Wiggins, 31 Ala. 13; Mason v. Alabama Iron Co., 73 Ala. 270; Cunningham v. Dorsey, 6 Cal. 19; Coffee v. Meiggs, 9 Cal. 363; Hale v. Trout, 35 Cal. 229; Atlanta & L. G. R.R. Co. v. Hodnett, 29 Ga. 461; Willingham v. Hooven, 74 Ga. 233; Brigham v. Hawley, 17 Ill. 38; McClelland v. Snider, 18 III. 58; Springdale C. A. v. Smith, 24 Ill. 480; Evans v. Chicago & R. I. R.R. Co., 26 III. 189; Chicago v. Sexton, 115 Ill. 230; Herbert v. Stanford, 12 Ind. 503; Fairfield v. Jeffreys, 68 Ind. 578; Cincinnati, I., St. L. & C. Ry. Co. v. Lutes, 112 Ind. 276; Richmond v. Dubuque & S. C. R.R. Co., 40 Ia. 264; Thompson v. Jackson, 14 B. Mon. 114; Elizabethtown & P. R.R. Co. v. Pottinger, 10 Bush 185; Eckenrode v. Chemical Co., 55 Md. 51; Fox v. Harding, 7 Cush. 516; Somers v. Wright, 115 Mass. 292; Jewett v. Brooks, 134 Mass. 505; Burrell 7. New York & S. S. S. Co., 14 Mich. 34; Loud v. Campbell, 26 Mich. 239: Grand Rapids & B. C. R.R. Co. v. Van Dusen, 29 Mich. 431; Goodrich v. Hubbard, 51 Mich. 62; Leonard v. Beaudry, 68 Mich. 312; Morrison v. Lovejoy, 6 Minn. 319; Ennis v. Buckeye Pub. Co., 46 N. W. Rep. 314 (Minn.); Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 325; Hale v. Hess, 46 N. W. Rep. 261 (Neb.); Boyd v. Meighan, 48 N. J. L. 404; Cramer v. Metz, 57 N. Y. 659; Cahen v. Platt, 69 N. Y. 348; Reed v. McConnell, 101 N. Y. 270; Hoy v. Gronoble, 34 Pa. 9; Addams v. Tutton, 39 Pa. 447 ; Imperial C. & C. Co. v. Port Royal C. & C. Co., 20 Atl. Rep. 937 (Pa.); Collyer v. Moulton, 9 R. I. 90; Singleton v. Wilson, 85 Tenn. 344; Porter v. Burkett, 65 Tex. 383; Curtis v. Smith, 48 Vt. 116; Morey v. King, 49 Vt. 304; Kendall B. N. Co. v. Commissioners of Sinking Fund, 79 Va. 563: Nash v. Hoxie, 59 Wis. 384; Cameron v. White, 74 Wis. 425; Muenchow v. Roberts, 46 N. W. Rep. 802 (Wis.). 1836, an agreement was entered into between the defendants and the plaintiffs, by which the latter agreed to furnish and deliver marble to build a City Hall in Brooklyn from Kain & Morgan's quarry, in Eastchester. The defendants were to pay $271,600 in different sums, as the work proceeded. In March, 1836, the plaintiffs entered into a covenant with Kain & Morgan by which the latter were to furnish the marble in question, for which the plaintiffs were to pay them $112,395 at the same time that the plaintiffs were to receive their payments from the defendants, and in the proportion which the above principal sums bore to each other. The plaintiffs proved the delivery of the marble under their contract with the defendants till July, 1837, when the latter refused to receive any more marble, although the plaintiffs were ready to proceed. The entire quantity of marble necessary to fulfil the plaintiff's contract was 88,819 feet. At the time the work was suspended, the plaintiffs had delivered 14,779 feet, for which the contract price was paid. The plaintiffs then had on hand at Kain & Morgan's quarry, about 3,308 feet, ready for delivery: but this was not of much value for other buildings, and would probably not bring over two shillings per foot. It was proved that had the work progressed with ordinary diligence, it would have taken the plaintiffs about five years to complete their contract; and they then proved that the difference between the cost of the marble to them, and the price to be paid for it in 1836, was about 20 per cent.; and that it fluctuated between that rate and 40 per cent. during the four successive years to 1840. That the ordinary profit calculated on by master stone-cutters was from 10 to 20 per cent., and that 15 per cent. was a fair living profit. All this evidence as to profits was objected to, but admitted by the circuit judge (Kent), under exceptions. The |