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later recovering the remaining $50. This rule has been considered harsh in its application, and various exceptions have become established.

The rule does not apply where the creditor, in addition to the part payment, receives something else of value in the eye of the law as consideration for the release of the balance of the debt, as where the debtor gives $50 and a jackknife in satisfaction of a $100 debt. Nor does the rule apply where something else than money is given in satisfaction of the debt, even though what is given may have less monetary value than the debt. This doctrine is well stated in an old English case, where it is said:

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"Payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole, because by no possibility, a lesser sum can be a satisfaction to the plaintiff for a greater sum: but the gift of a horse, hawk, or robe, etc. in satisfaction, is good. For it shall be intended that a horse, hawk, or robe, etc. might be more beneficial to the plaintiff than the money, in respect of some circumstance, or otherwise the plaintiff would not have accepted it in satisfaction. ' '23

And in the same way a money debt may be satisfied by the giving of a negotiable instrument for a less sum.

If the debt is unliquidated and disputed, the payment or the giving of a note for a less sum than that claimed will be a good consideration for the release.24 Also, if the contract is executory on both sides, it may be released by mutual consent, the release of one party being the consideration for his release of the other party. And, of course, where the agreement to forgo the residue is under seal, no consideration is necessary.

Composition with Creditors. An agreement between a debtor and his creditors by which each creditor agrees to accept a certain percentage of his claim in full satisfaction, does not come within the rule that agreements to accept a lesser sum in payment of a larger are void for want 23 Pinnel's Case, 5 Coke 117a, 77 Eng. Rep. Re. 237.

24 Russell v. Cook, 3 Hill (N. Y.) 504.

of consideration. In such cases the consideration is not the debtor's promise to pay, but is found in the agreement of the other creditors to forbear their claims, as some courts consider,25 or in the debtor's procurement of the promise of the other creditors to forbear.

§ 30. Forbearance to Sue. We have already noted that consideration may consist in forbearance or a promise to forbear from doing what one has a legal right to do. A frequent illustration of this is found in agreements not to bring suit on a claim which one has against another. If the agreement upon which the claim is based is illegal, as, for example, a claim on a gambling debt or on a contract for the commission of a crime, a promise to forbear the same could not constitute a consideration. It would not be the forbearance of a legal right. If the claim is reasonably doubtful in law or in fact, its forbearance or a promise to forbear is a sufficient consideration, but cannot be a consideration where the claim is unenforcible, at least if known to be such to the complainant. Where the time of forbearance is unspecified, a reasonable time will be implied.

§ 31. Consideration Distinguished from Motive and Moral Obligation. That motive is not consideration and cannot take the place of consideration, is illustrated by a famous case where a widow sued her husband's executor for breach of an agreement to allow her to occupy a house which had belonged to her husband. The executor had made the agreement in pursuance of an expressed wish of the deceased that his wife might use the house. The court held that the desire of the executor to carry out the wish of the deceased could not amount to a consideration. That the essential element of detriment to the promisee was lacking is shown in the opinion of the court, where it was said: "Motive is not the same thing with consideration. Consideration means something which is of some value in the eye of the law, moving from the plaintiff. "26 For the same reason a father's promise to pay his son's debts, or the 25 Perkins v. Lockwood, 100 Mass. 249, 1 Am. Rep. 103. 26 Thomas v. Thomas, 2 Q. B. 851, 114 Eng. Rep. Re. 330.

promise of a son to pay for necessaries voluntarily furnished to his father,27 or a death bed agreement to receive less than the amount due on a note because the sick man thought he had charged too much for the property for which the note was given, are void for want of sufficient consideration28 and cannot be sustained because of motive or moral obligation.

Natural affection for a near relative, or, as usually expressed, the consideration of blood, or natural love and affection, is said to be a "good" consideration, as distinguished from a "valuable" consideration. In contracts, however, "valuable" consideration is necessary, and attempts to apply the doctrine of "good" consideration in the case of contracts have been unsuccessful. "Good" consideration is a doctrine of the law of real property alonenot of the law of contracts.

§ 32. Past Consideration. What is called past consideration is really no consideration at all. It is some act or forbearance in time past, by which a man has benefited without thereby incurring any legal liability. If later he makes a promise to the person whose act or forbearance benefited him, without other consideration than the past benefit, it is said to be based on a past consideration and is not enforcible. The beneficial act is a mere gratuity, based on motive, and completely executed so as to be incapable of being joined to and made the consideration for a promise of the person benefited. Thus, services rendered in the past without the request or knowledge of the one promising will not support a subsequent promise to pay, and, therefore, a father's promise to pay one who has previously rendered services to his adult son when ill is without consideration.29

It is sometimes said that a past consideration will support a subsequent promise, if such past consideration were given at the request of the promisor. This is only true

27 Cook v. Bradley, 7 Conn. 57, 18 Am. Dec. 79.

28 Hart v. Strong, 183 Ill. 349, 55 N. E. 629.

29 Mills v. Wyman, 3 Pick. (Mass.) 207.

where the request was of such a nature as to amount in effect to an implied promise to reimburse or pay what the requested article or services were worth. Thus, if A painted B's house at B's request, without any express agreement as to being paid therefor, but B at a subsequent date should promise to pay A $100 because he had done it, it might well be implied that this was a mere fixing of the amount to be paid on a previous implied contract to pay for the work requested. But if no promise could be implied from the request, as where the services were understood to be gratuitous, a subsequent express promise would have no consideration to support it.30 This would be the case if A and B both understood that A's painting of the house was done merely from motives of friendship or charity.

If one incurs a legal liability at the request of another, there is an implied promise to reimburse, unless it was expressly understood to be gratuitous, and, therefore, a subsequent promise will be enforcible.

In a number of cases, it has been decided that where one voluntarily does without authority something which another person was legally bound to do, and the latter subsequently promises to pay him therefor, he is bound by his promise. These cases are not exceptions to the rule as to past consideration, and should be explained on the ground of ratification by a principal of the act of a selfappointed agent. In a case where the plaintiff sued the defendant on a subsequent promise of reimbursement for money paid by the plaintiff, without prior request by the defendant, in discharge of a binding obligation of defendant, the Supreme Judicial Court of Massachusetts held that the subsequent promise by the defendant to reimburse the plaintiff was "equivalent to a previous request." "It comes within the well-established principle, that the subsequent ratification of an act done by a voluntary agent of another, without authority from him, is equivalent to a previous authority." 31

30 Allen v. Bryson, 67 Iowa 591, 25 N. W. 820, 56 Am. Rep. 358. 81 Gleason v. Dyke, 22 Pick. 390, 393.

Exception to Rule. A true exception to the rule as to past consideration may be found in cases which hold that liability on a previous agreement based on a valuable consideration, may be created by a new promise, without a new consideration, although by incapacity to contract or lapse of time or rules of law since repealed, the agreement was unenforcible against the promisor at the time of making the new promise. The principle on which all of these cases rest is "that where the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law, meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it."' 32

Thus, a promise to pay a debt from which the debtor has been discharged in bankruptcy,33 or a promise to pay a debt barred by the statute of limitations34 or contracted during minority,35 has been held binding without a further consideration. The new promise does not create a new contract, but is merely a waiver of a personal defense against the existing agreement. Hence the action is really brought on the original promise except where the new promise is in the form of a negotiable instrument. Undoubtedly in all these cases there is a moral obligation to fulfil the original agreement, but the only legal theory on which recovery can be allowed is that the new promise waives the legal defense and enables the promisee to recover on the old promise supported by its past but valuable consideration. Therefore, this exception cannot apply in those cases where the original agreement was void, as in the case of a contract of a married woman at common law, or in cases where the original agreement was extinguished by an

32 Parke, B., in Earle v. Oliver, 2 Exch. 71, 90.

33 Dusenbury v. Hoyt, 53 N. Y. 521, 13 Am. Rep. 543.

34 Ilsley v. Jewett, 3 Metc. (Mass.) 439.

35 Reed v. Batchelder, 1 Metc. (Mass.) 559.

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