Contingent consideration. has been paid is a good consideration (c); and that if a person indebted to a testator's estate pays the probate and legacy duty on the amount of the debt, this is a good consideration for a release of the debt by the residuary legatees (d): a strong case, for this view was an afterthought to support a transaction which was in origin and intention certainly gratuitous, and in substance an incomplete voluntary release; the payment was simply by way of indemnity, it being thought not right that the debtor should both take his debt out of the estate and leave the estate to pay duty on it. The consent of liquidators in a voluntary winding-up to a transfer of shares is a good consideration for a guaranty by the transferor for the payment of the calls to become due from the transferee (e). An agreement to continue-i. e. not to determine immediately -an existing service terminable at will, is likewise a good consideration (ƒ). The principle of all these cases may be summed up in the statement made in so many words by the judges in more than one of them, that the promisor has got all that he bargained for. There has been another rather peculiar case in equity which was to this effect. An agreement is made between a creditor, principal debtor, and surety under a continuing guaranty, by which no new undertaking is imposed on the surety, but additional remedies are given to the creditor, which he is to enforce if requested to do so by the surety. Held that if by his own negligence the creditor deprives himself of the benefit of these remedies, the surety is discharged. The real meaning of what is there said about consideration seems to be that, as between the creditor and the surety, it is not material (g). It has been suggested that on a similar (c) Cheale v. Kenward, 3 De G. & J. 27. (d) Taylor v. Manners, 1 Ch. 48, by Turner, L. J. dub. Knight Bruce L. J. (e) Cleve v. Financial Corporation, 16 Eq. 363, 375. (f) Gravely v. Barnard, 18 Eq. 518. (g) Watson v. Allcock, 4 D. M. G. 242. The guaranty was determinable by notice from the surety, and it was suggested by way of supplying a new consideration that on the faith of the creditor's increased remedy the surety might in fact principle the consideration for a promise may be contingent, that is, it may consist in the doing of something by the promisee which he need not do unless he chooses, but which, being done by him, the contract is complete and the promise binding. But no such doctrine is necessary. If a tradesman agrees to supply on certain terms such goods as a customer may order during a future period, the better opinion is that this is not a promise, but an offer. He cannot sue the customer for not ordering any goods, but if the customer does order any the condition of the offer is fulfilled, and the offer being thus accepted, there is a complete contract which the seller is bound to perform (h). Inadequacy of consideration coupled with other things Inademay however be of great importance as evidence of fraud quacy plus other things or the like, when the validity of a contract is in dispute: in Equity: see Chap. and it has been considered (though the better opinion is XI. otherwise) to be of itself sufficient ground for refusing specific performance. This subject will be examined under the head of Undue Influence, Ch. XI., post. as con Must be of rule. Reciprocal promises may be, and in practice constantly Reciprocal are, the consideration for one another, and so constitute a promise binding contract. It is said that in order to be a good sideration. consideration a promise must be a promise to do something possible: which the promisor has the means of performing; but this qu. extent proposition, though affirmed by an authority little short of judicial (i), is unwarrantably wide. The true limitation, it is submitted, is that the thing promised must be in itself possible, and such as the promisor is legally competent to perform; this last point is what the cases cited for the have abstained from determining it. But surely this will not do: the true ground is the creditor's original duty to the surety, which covers subsequently acquired rights and remedies. (h) G. N. Ry. Co. v. Witham, L. R. 9 C. P. 16. Cp. Chicago & G. E. Ry. Co. v. Dane, 43 N. Y. (4 Hand) 240, where it was rightly Must be enforceable. general statement really go to show, though certainly there are some dicta much more largely expressed (). In this form the proposition is completely covered by the general law touching impossible and unlawful agreements, and we know of nothing that requires us to lay down any wider rule as part of the distinct learning of consideration. There is certainly no general rule that a promise cannot be sued on unless the promisor had in fact the means of performing it when he made it; and if we said that the undertaking of a legal liability is not to be deemed a consideration unless the liability be substantial, we should be setting up in another shape the often exploded supposition that the adequacy of the consideration can be inquired into. It is certain however that a promise which is to be a good consideration for a reciprocal promise must be such as can be enforced; it must therefore be not only lawful and in itself possible, but reasonably definite. Thus a promise by a son to his father to leave off making complaints of the father's conduct in family affairs is no good consideration to support an accord and satisfaction, for it is too vague to be enforced (1). And upon a conveyance of real estate without any pecuniary consideration a covenant by the grantee to build on the land granted such a dwelling-house as he or his heirs shall think proper is too vague to save the conveyance from being voluntary within 27 Eliz. c. 4 (m). For the same reason, neither the promise to do a thing nor the actual doing of it will be a good consideration if is already it is a thing which the party is already bound to do either by the general law or by a subsisting contract with the other Must not be of a thing one bound generally or to the promisee to do. (k) Haslam v. Sherwood, 10 Bing. 540, Nerot v. Wallace, 3 T. R. 17, where the dicta of Lord Kenyon, C. J. and Ashhurst, J. are those meant in the text. Buller and Grose, JJ. confined their judgments to the true ground of the case, viz. that the agreement then in question was illegal as being against the policy of the bankrupt laws. (1) White v. Bluett, 23 L. J. Ex. 36: this seems the ratio decidendi, though so expressed only by Parke, B. who asked in the course of argument, "Is an agreement by a father in consideration that his son will not bore him a binding contract?" (m) Rosher v. Williams, 20 Eq. 210. party (n). It is obvious that an express promise by A. to B. to do something which B. can already call on him to do can in contemplation of law produce no fresh advantage to B. or detriment to A. But the doing or undertaking of anything beyond what one is already bound to do, though of the same kind and in the same transaction, is a good consideration. A promise of reward to a constable for rendering services beyond his ordinary duty in the discovery of an offender is binding (o): so is a promise of extra pay to a ship's crew for continuing a voyage after the number of hands has been so reduced by accident as to make the voyage unsafe, so that the crew are not bound to proceed under their original articles (p). Again there will be consideration enough for the promise if an existing right is altered or increased remedies given. Thus an agreement to give a debtor time in consideration of his paying the same interest that the debt already carries is inoperative, but an agreement to give time or accept reduced interest in consideration of having some new security would be good and binding. The common proviso in mortgages for reduction of interest on punctual payment-i. e., payment at the very time at which the mortgagor has covenanted to pay it-seems to be without any consideration, and it is conceived that if not under seal such a proviso could not be enforced (1). Again the rule does not apply if the promise is in the nature of a compromise, that is if a reasonable doubt exists at the time whether the thing promised be already otherwise due or not, though it should be afterwards ascertained that it was so. The reason of this will be more conveniently explained, so far as it needs explanation, when we speak presently of forbearance as a consideration. Promise of a thing one is bound to a third person to do. In the case where the party is already bound to do the same thing, but only by contract with a third person, there is some difference of opinion. The new promise purports to create a new and distinct right, which, if really created, must always be of some value in law, and may be of appreciable value in fact. B. may well be much interested in A.'s performing his contract with C., but yet so that the circumstances which give him an interest in fact do not give him any interest which he can assert in law. The power to claim A.'s performance in his own right will then be valuable to him, and why may he not entitle himself to it by contract, and bind himself to pay, for it? This opinion has been expressed and acted on in the Court of Exchequer (»), and seems implied in the judgment of the majority of the Court of Common Pleas in a case decided some weeks earlier (s), which affords a curious modern example of a class of agreements already mentioned as having in former times given rise to much litigation and even to conflicts of jurisdiction. An uncle wrote to his Shadwell nephew in these terms: "I am glad to hear of your intended marriage with E. N.; and as I promised to help you at starting I am happy to tell you that I will pay to you one hundred and fifty pounds yearly during my life," subject to a contingency not material to be now stated. The marriage took place, and for several years this annuity was paid; after which it fell into arrear, the uncle died, and the nephew sued his executors. It was pleaded amongst other things that the marriage was not at the testator's request and that there was no consideration for the promise. Erle, C. J. and Keating, J. held (but without saying in terms that the existence of the engagement to marry at the date of the uncle's promise could make no difference) that on the whole the marriage must be taken to have been at the testator's request, and so was a suffi v. Shadwell. (r) Scotson v. Pegg, 6 H. & N. 295, 30 L. J. Ex. 225. (s) Shadwell v. Shadwell, 9 C. B. N. S. 159, 30 L. J. C. P. 145. Sed qu. as to the decision on the facts. |