you suffer no damage, but remain in the same condition as before the promise was made. Hence, though I may be morally bound to perform, yet the law will neither enforce performance, nor give damages for non-performance. But if, on the other hand, my promise to you is based upon something done or to be done by you for me, which will either benefit me or incommode you, there is then a consideration for my promise, which converts it into a contract, and makes it binding in law. There is now a mutuality, and each party may call upon the other to perform his part, or pay damages for non-performance. But we must take care not to confound a consideration with an equivalent, as we are at first apt to do. The law does not require that what you do or agree to do for me shall be the same in kind or equal in value, with what I agree to do for you. (a) It merely requires that something be done or suffered on your part, as an inducement to my undertaking, and a foundation for damages in case of my failure, which something we call a consideration; and it makes no difference whether it be beneficial to me or some other person not a party, or merely prejudicial to you; for in either case it will be a sufficient consideration. (b) The general idea is, that a consideration must be something by which one party is to gain, or the other to lose, in a pecuniary sense; as the payment of money, performance of work, delivery of property, forbearance to sue, and the like. But this is not always the case; for a moral obligation alone is held sufficient to support an express promise, though not to raise an implied promise. Thus, if an adult person promise to pay a debt contracted during infancy; (c) or if any person promise to pay a debt barred by the statute of limitations, (d) or bankruptcy; such promise will bind him,

(a) This rule is sometimes expressed in strong language, as "The law does not weigh the quantum of the consideration." "The least spark of a consideration will be sufficient." Pillans v. Mierop, 3 Burr. 1663, 1666; Whitney v. Stearns, 16 Maine, 397; Sanborn v. French, 2 Foster (N. H.), 246; Train v. Gold, 5 Pick. 384; Hubbard v. Coolidge, 1 Met. 93; Austyn v. M'Lure, 4 Dall. 226. In the absence of fraud or warranty, the sale of a chattel which proves to be utterly worthless is a sufficient consideration. Johnson v. Titus, 2 Hill, 606; Brown v. Budd, 2 Carter (Ind.), 442; Eagan v. Call, 34 Penn. State, 236. But gross inadequacy of consideration is often an important fact in connection with circumstances of distress, improvidence, or mental incompetency, or where peculiar confidential relations exist between the parties from which the presumption of fraud may be raised, so as to avoid the contract or prevent a decree of specific performance. Griffith v. Spratley, 1 Cox, 383; Preble v. Boghurst, 1 Swanst. 329; Moth v. Atwood, 5 Ves. Jr. (Sumner's ed.) 845, and notes; Crowe v. Ballard, 1 id. 215; Mortlock ». Buller, 10 id. 291; Osgood v. Franklin, 2 Johns. Ch. 1, 23; Knobb v. Lindsay, 5 Ohio, 468; Watkins v. Collins, 11 id. 31; Tracy v. Sackett, 21 id. 54; Follett v. Rose, 3 McLean, 332; Davidson v. Little, 22 Penn. State, 245; Robinson v. Schly, 6 Geo. 515; 1 Story, Eq. Juris. § 246. A promise to pay one cent is not a consideration for a promise to pay six hundred dollars. Schonell v. Nell, 17 Ind. 29.

(b) Com. Dig. art. B. 1; Pillans v. Mierop, 3 Burr. 1673; Bunn v. Guy, 4 East, 194; Morley v. Boothby, 3 Bing. 113; Violet v. Patton, 5 Cranch, 150. Benefit to a third person is the ordinary consideration of guaranties. Stadt v. Lill, 9 East, 348; Leonard v. Vredenberg, 8 Johns. 29; Bailey v. Freeman, 11 id. 221. A mutual concurrent promise may be a consideration. Nott v. Johnson, 7 Ohio State, 270. Forney v. Ship, 4 Jones, Law. 527; Funk v. Hough, 29 Ill. 145.

(c) 2 Kent, Com. 234-239.

(d) Lonsdale v. Brown, 3 Wash. C. C. 90.

though there was no existing legal obligation. The rule then is, that a moral obligation, founded on a once existing legal obligation, will support an express promise. (a) Marriage also is a sufficient consideration to support a promise predicated upon it, though not necessarily a valuable one. (b) But natural affection among kindred is not. (c) A consideration which is impossible, will not support a contract, (d) nor will the law uphold one which is illegal or immoral, (e) as will be seen hereafter. Considerations are of three kinds; namely, executed, executory, and concurrent. An executed consideration is something done before making the promise; and the rule is, that such consideration will not be sufficient, unless induced by the previous request of the other party, or there be a subsequent new consideration. (ƒ) Thus, if I promise you to pay a debt already due by another, this promise is not binding, because the consideration is past; but if I first request you to trust him, promising to see the debt paid, the promise is binding; and so it is, if, upon the strength of it, you agree not to sue him; for this forbearance is a new consideration. (g) An executory consideration is something to be per

(a) That a moral obligation is a sufficient consideration to sustain an express promise is supported by numerous dicta. Atkins v. Hill, Cowper, 284; Hawkes v. Saunders, 1 id. 290; Trueman v. Fenton, id. 544; Lee v. Muggeridge, 5 Taunt. 36; Seago v. Deane, 4 Bing. 459; Wells v. Horton, 2 C. & P. 383; Gleason v. Dyke, 22 Pick. 390; Doty v. Wilson, 14 Johns. 381; Com'rs Canal Fund v. Perry, 5 Ohio, 56. Montgomery v. Lampton, 3 Met. (Ky.) 519; Musser v. Ferguson, 55 Penn. St. 475. Stated in this general form, it has been of late discountenanced by the courts. Wennall v. Abney, 3 B. & P. 249, note; Littlefield v. Shee, 2 B. & Ad. 811, per Lord Tenterden ; Jennings v. Brown, 9 M. & W. 501, per Parke, B.; Kaye v. Dutton, 7 Man. & Grang. 807, per Tindal, C. J.; Hamor v. Moore, 8 Ohio State, 239. Shepard v. Rhodes, 4 R. Ï. 470. The cases, to explain which it has been employed, are now based on a less sweeping rule, which allows a party to waive some special privilege or exception in his favor, but for which there would have been a valid contract enforceable against him. For statement of the rule, see American Law Register, June 1854, art. Consideration of a contract; Parsons on Contracts, vol. 1, p. 360; Selwyn, N. P. 55 (11th ed.); Gee v. Archer, 2 Barb. 420; Nash v. Russell, 5 id. 566; Valentine v. Foster, 1 Met. 520; Beaumont v. Reeve, 8 Q. B. 483; and an elaborate opinion of the late Lord Denman in Eastwood v. Kenyon, 11 Ad. & El. 438; s. c. 2 P. & D. 276.

(b) 2 Black. Com. 297, 444; Story v. Arden, 1 Johns. Ch. 261; Bradish v. Gibbs, 3 id. 523; Newburyport Bank v. Stone, 13 Pick. 420.

(c) Pennington v. Gittings, 2 Gill & Johns. 208; Duvoll v. Wilson, 9 Barb. 487; Mills v. Wyman, 3 Pick. 307; Cook v. Bradley, 7 Conn. 57.

(d) Co. Litt. 206 a; Nerot v. Wallace, 3 T. R. 17; Powell on Contracts, 161, 164. But this impossibility must be natural or physical, not merely personal to the promisor; and difficulty or improbability is no excuse. Huling. Craig, Addison, 343; Gilpin v. Consequa, 1 Peters, C. C. 86; Yonqua v. Nixon, id. 224; Tufnel v. Constable, 7 A. & E. 798.

(e) Collins v. Blantern, 2 Wils. 347; Toler v. Armstrong, 11 Wheaton, 258. (f) Lampleigh v. Braithwaite, Hob. 106; 22 American Jurist, 2-16; Dodge v. Adams, 19 Pick. 429; Dearborne v. Bowman, 3 Met. 158; Chilcott v. Trimble, 13 Barb. 502; Webb v. Cole, 20 N. H. 490; Kelley v. Lindsey, 7 Gray, 287. But an entire promise, founded partly on an executed and partly on an executory consideration, will be sustained. Bret v. J. S. et ux. Cro. Eliz. 756; Loomis v. Newhall, 15 Pick. 159. A previous request may be implied from tacit acquiescence in the service or an acceptance of the benefit conferred. Livingston v. Rogers, 1 Caines, 583; Oatfield v. Waring, 14 Johns. 188; Law v. Wilkin, 6 Ad. & El. 718; Wilson v. Edmonds, 4 Foster (N. H.), 517. It is held that if after the payment of my debt by a third person I make an express promise to pay him the amount, this last promise is binding. Gleason v. Dyke, 22 Pick. 390; Paynter v. Williams, 1 Cr. & Meeson, 819. (9) Leonard v. Vredenberg, 8 Johns. 29; 2 Kent, Com. 122, 123.

formed before the other party can be required to perform. This is called a condition precedent, and performance must be done or tendered to make the contract binding on the other party. Thus, if I agree to do so much work for so much money, I must perform the work, or offer to perform it, before I can claim the compensation. A concurrent consideration is where there are mutual engagements to he performed at the same time, as in the case of marriage; and here, as neither party can perform without the other, a tender of performance is sufficient. The principal exceptions to the necessity of a consideration were formerly two; namely, contracts under seal, and negotiable contracts after being negotiated. I shall speak of these hereafter. For the present it is sufficient to say, that we have a statutory provision authorizing a total or partial failure of consideration to be set up in defence to all written contracts, whether under seal or not, except negotiable contracts after being negotiated. (a)

(a) Where a part of the consideration is merely void, the note will be good in part and bad in part. Wilson v. Foster, 20 Ohio State, 89. But where a portion is illegal, then the whole is void. Widoe v. Webb, 20 Ohio State, 431. Forbearance of legal proceedings either against the promisor or a third party, is a frequent consideration, and it is not necessary that the promisor should be at all interested in the suit. Smith v. Algar, 1 B. & Ad. 603; King v. Upton, 4 Greenl. 387; Silvis v. Ely, 3 W. & S. 420; Jennison v. Stafford, 1 Cush. 168; Call v. Calef, 4 id. 388; Rood v. Jones, 1 Doug. (Mich.) 188; Ford v. Rehman, Wright (Ohio), 434; Boyd v. Freize, 5 Gray, 553. Vinal v. Richardson, 13 Allen, 521. But the forbearance is not a valid consideration, if the proceedings are entirely unfounded. Jones v. Ashburnham, 4 East, 455; Newell v. Fisher, 11 Sm. & Marsh. 431; Wade v. Simeon, 2 M. G. & S. 548. But if the result is a matter of reasonable doubt, it is sufficient. Gould. Armstrong, 2 Hall (N. Y.), 266; Longridge ». Dorville, 5 B. & Ald. 117. A promise in consideration of forbearance is not binding unless accepted by the other party. Shupe v. Galbraith, 32 Penn. State, 10. An agreement to give time is a sufficient consideration for a note of a third party. Mechanics' Bank v. Wixson, 42 N. Y. 438.

Compromise of a right of action or waiver of legal rights is a valid consideration, whatever might have been the result of a suit. Penn v. Lord Baltimore, 1 Ves. Sen. 450; Union Bank v. Geary, 5 Peters, 114; Barlow v. Ocean Insurance Co. 4 Met. 270; McKinley v. Watkins, 13 Ill. 140; Pierce v. Pierce, 25 Barb. 243; Burnham v. Dunn, 35 N. H. 556; Mayo v. Gardner, 4 Jones (N. C.), 359; Gates v. Shutts, 7 Mich. 127. Burnham v. Dunn, 35 N. H. 556; Mayo v. Gardner, 4 Jones, Law, 359; Cook v. Wright, 1 Ellis, B. & S. 559; Scott v. Warner, 2 Lans. 49. The claim compromised must not be unfounded, or else it will not support a compromise; but an honest difference of opinion is sufficient. Edwards v. Baugh, 11 M. & W. 641; Longridge v. Dorville, 5 B. & Ald. 117; Jarvis v. Sutton, 8 Ind. 289. Palfrey v. Portland, &c. R. R. Co. 4 Allen, 55. But the compromise will not be sustained if the public have an interest in the prosecution of the legal proceedings. Coppock v. Bower, 4 M. & W. 360; Gardner v. Maxey, 9 B. Monr. 90; Clark v. Ricker, 14 N. H. 44; Walbridge v. Arnold, 21 Conn. 424.

The acceptance of part payment of a debt by a creditor has been held from an early period of the common law, to be no bar to an action for the sum unpaid, there being no consideration for the discharge of the residue which the law would recognize. The conduct of a creditor in prosecuting a claim for the part thus discharged, in violation of his promise, has been thought so unfair and unconscionable by the courts, that they have materially impaired the original force of the rule, excluding from its operation cases where any other property but money was received in satisfaction, or any collateral benefit could be fixed upon as a consideration, or where third parties would be defrauded if the creditor was allowed to recover the residue. Howe v. M'Kay, 5 Pick. 44; Brooks v. White, 2 Met. 283; Smith v. Bartholomew, 1 id. 276; Kellogg v. Richards, 14 Wendell, 116; Goodwin v. Follett, 25 Vt. 386; Harper v. Graham, 20 Ohio, 105; Lee v. Oppenheimer, 32 Maine, 253; Silvers v. Reynolds, 2 Harrison, 275; Browne v. Stackpole, 9 N. H. 478; Warren v. Skinner, 20 Conn. 559; Sibree v. Tripp,

Gifts. In this connection, I will say a word respecting gifts. Every competent person has an undoubted right to give his prop

15 M. & W. 23; Rose v. Hall, 26 Conn. 392; Bowker v. Harris, 30 Vt. 424. Liening v. Gould, 13 Cal. 598; State v. Davenport, 12 Iowa, 355; Pemberton v. Hoozier, 1 Kansas, 108. Payment of a portion of the money before it is due is a good consideration. Newsam v. Finch, 25 Barb. 175; Wright v. Bartlett, 43 N. H. 548; Warner v. Campbell, 26 Ill. 282. A composition agreement between a debtor and his creditors, by which they agree to receive a certain sum in hand, and a note for a portion of the remainder, as a satisfaction of their claims, is valid and binding at law. Way v. Langley, 15 Ohio State, 392; Pierson v. McCahill, 21 Cal. 122. In this latter case, the consideration for the promise of one creditor is found in the promise of the other creditors, and it is said that such an agreement with a single creditor would not be binding. In Massachusetts, it is still held that payment of a portion of a debt is no consideration for a satisfaction of the whole. 12 Gray, 341; Watts v. Frenche, 4 Green, 407. But see 20 Ohio, 105. The mere performance of that which one is legally bound to do is no consideration. Tilden v. New York, 56 Barb. 340; Parmelee v. Thompson, 45 N. Y. 58.

It is an interesting question now constantly calling for the adjudication of the courts, in what cases voluntary subscriptions to public institutions, or private enterprises of benevolence, are supported by a valid consideration. The law on this point is as yet unsettled. There are opinions and dicta which seem to make all such subscriptions binding, on the ground that the promise of each is a good consideration for the promise of all. George v. Harris, 4 N. H. 533; Cong. Soc. in Troy v. Perry, 6 id. 164; Hanson v. Stetson, 5 Pick. 506; Fisher v. Ellis, 3 id. 322; Watkins v. Eames, 9 Cush. 537. Trustees Baptist Society v. Robinson, 21 N. Y. 234. On the other hand, some actual benefit to the subscriber, or some actual expenditure on faith of his subscription, or some agreement on the part of the party to whom the promise of the subscription runs, has been required to sustain it; and such is the prevailing current of authorities. Boutell v. Cowden, 9 Mass. 254; Phillips Academy v. Davis, 11 id. 113; Bridgewater Academy v. Gilbert, 2 Pick. 579; Thompson v. Paige, 1 Met. 565; Ives v. Sterling, 6 id. 310; Common School Fund v. Perry, 5 Ohio, 58; Stewart e. Trustees of Hamilton College, 1 Comst. 581; s. c. 2 Denio, 403; Barnes v. Perine, 9 Barb. 202; 15 id. 249; 2 Kernan, 18; Wilson v. Baptist Education Society, 10 id. 308; Phipps v. Jones, 20 Penn. State, 260; Ryerss v. Congregation of Blossburg, 33 Penn. State, 114; Norton v. Janvier, 5 Harring. 346. Reformed, &c. Church . Brown, 29 Barb. 335; Doyle v. Glasscock, 24 Tex. 200; Pryor v. Cain, 25 Ill. 292; Eyclesheimer v. Van Antwerp, 13 Wis. 546; McDonald v. Gray, 11 Iowa, 508; Richmondville Seminary v. Brownell, 87 Barb. 535; Ohio W. T. College v. Love, 16 Ohio State, 20. But the expenditures need not be by the parties to whom the subscriptions are payable, if others have acted on the faith of them. Miller v. Bollard, 46 Ill. 377. There is an elaborate discussion of the rules governing such subscriptions in Lathrop v. Knapp, 27 Wis. 214. The obligation assumed by the party to whom the subscription runs, to see and to make the application of the money, was held sufficient in Troy Academy v. Nelson, 24 Vt. 189. But see Dayton, &c. Turnpike Co. v. McCoy, 13 Ohio State, 84. A subscription to secure the rebuilding of a woollen mill belonging to private persons will be valid; the public interest in such an enterprise is suflicient. Pitt v. Gentle, 49 Mo. 74.

Where A. promises B., from whom the consideration moves, to confer a benefit on C., it is a controverted question whether C. has a right of action in his own name to enforce the promise. The American authorities generally allow C. this right of action. Hall v. Marston, 17 Mass. 575; Arnold v. Lyman, 17 Mass. 400; Carnegie v. Morrison, 2 Met. 404; Berly v. Taylor, 5 Hill, 577; Delaware & H. Canal Co. v. Westchester County Bank, 4 Denio, 97; Bigelow v. Davis, 16 Barb. 561; Thompson v. Thomp son, 4 Ohio State, 333; Crumbaugh v. Kugler, 3 Ohio State, 544; Bagaley v. Waters, 7 Ohio State, 366. Beals v. Beals, 20 Ind. 163; Allen v. Thomas, 3 Met. (Ky.) 198. A recent opinion of a learned jurist, Metcalf, J., essentially limits the rule, as stated in the earlier decisions in Massachusetts, and requires some privity on the part of the third party to entitle him to sue. Mellen v. Whipple, 1 Gray (Mass.), 317; Dow r. Clark, 7 id. 198. Page v. Becker, 31 Mo. 466. The consideration of a written contract may be proved by extrinsic evidence. M'Crea v. Purmort, 16 Wendell, 460; Frink v. Green, 5 Barb. 455; Willson v. Betts, 4 Denio, 201; Arms v. Ashley, 4 Pick. 71; Livermore v. Aldrich, 5 Cush. 431. If it belongs to the class required by the statute of frauds to be in writing, the consideration must appear in writing in England. Wain v. Walters, 5 East, 10. The English rule has been followed in New York and some other States. Sears v. Brink, 3 Johns. 210; Rogers v. Kneeland, 10 Wendell,

erty to whom he pleases, provided he do not thereby injure his creditors. And although a promise to give is not binding, for want of a consideration, yet a gift perfected is irrevocable by the giver; and to perfect a gift, there must in all cases be an actual delivery of the thing given, if it be such as to admit of actual delivery. (a) This is equally true of gifts inter vivos, between the living, and gifts causa mortis, in anticipation of death. But the latter differ from the former in this, that being made in anticipation of death, if the giver recover, the condition of the gift fails, and he may reclaim the thing given. This species of gift differs from a nuncupative will in two respects: The forms are dispensed with, and there is an actual delivery. But courts are inclined to watch such gifts with great caution, and require very clear evidence to support them. (b)

§ 176. Parties. The general rule is, that all persons are capable of contracting. But there are several exceptions, all but one of which are founded on the actual or presumed want of mental capacity. The very idea of a contract supposes the assent of mind on each side. The term agreement, which is nearly synonymous with contract, has been supposed to be formed by two words, aggregatio mentium, which expresses this idea. (c) The parties, 218; Edelen v. Gough, 5 Gill, 103; Henderson v. Johnson, 6 Geo. 390; but the current of judicial opinion in this country is in favor of dispensing with its expression. Packard v. Richardson, 17 Mass. 122; Cummings v. Dermitt, 26 Maine, 397; Gillighan v. Boardman, 29 id. 79; Reed v. Evans, 17 Ohio, 128; How v. Kimball, 2 M'Lean, 103; Sage v. Wilcox, 6 Conn. 81. Steadman v. Guthrie, 4 Met. (Ky.) 147; Shirley v. Black, 45 Penn. State, 345.

(a) Noble v. Smith, 2 Johns. 52; Pearson v. Pearson, 7 id. 26. Phipps v. Hope, 16 Ohio State, 586; Woodruff v. Cook, 25 Barb. 505; Mechling's Appeal, 2 Grant's Cases, 157; Reid v. Spalding, 42 N. H. 114; Marsh v. Fuller, 18 N. H. 360. Delivery need not be simultaneous with the words of donation. Gillespie v. Burleson, 28 Ala. 551. Nor will a written instrument, purporting to be a gift of personalty, be sufficient without delivery. Payne v. Powell, 5 Bush, 248. The delivery must be proven; it cannot be inferred from the mere possession of the article by the donee where that might have been otherwise accounted for. Grey v. Grey, 47 N. Y. 552. A mere parol declaration cannot cancel a debt, or transform it into a gift; but where the intent of the original transaction is doubtful, subsequent declarations of the donor as to the intention are admissible. Doty v. Wilson, 47 N. Y. 580. Choses in action not negotiable, and negotiable paper not endorsed, may be the subjects of a gift; and delivery sufficient to vest an equitable title in the donee, though not the legal one, is sufficient. The delivery of a savings bank book was held to pass the deposits. Camp's Appeal, 36 Conn. 88.

(b) Parish v. Stone, 14 Pick. 198; Carpenter v. Dodge, 20 Vt. 595; Withers v. Weaver, 10 Barr, 391; 2 Kent, Com. 437-48, ch. 38; Hamor v. Moore, 8 Ohio State, 239; Starr v. Starr, 9 id. 74; Singleton v. Cotton, 23 Geo. 260; Jones v. Brown, 34 N. H. 439; Kenney v. Public Administrator, 2 Bradf. Sur. R. 319; Merchant v. Merchant, 3 id. 432; Bates v. Kempton, 7 Gray, 382. Choses in action, such as bonds, mortgages, and promissory notes not endorsed, may be transferred by delivery only as a valid donatio causa mortis. Westerlo v. De Witt, 38 N. Y. 340; House v. Grant, 4 Lans. 296; Southerland v. Southerland, 5 Bush (Ky.), 591. So the delivery of a savings bank book in extremis, will pass the deposits. Tillinghast v. Wheaton, 8 R. I. 536. Contra, Ashbrook v. Ryan, 2 Bush (Ky.), 228. The donee's own note cannot be the subject of such a gift. Brown v. Moore, 3 Head, 671. But a receipt for money may be so given to the debtor. Champney v. Blanchard, 39 N. Y. 111. Where a soldier deposited money, taking a written agreement to return it if he came back alive, if not, to pay it to an infant sister, it was held valid. Baker v. Williams, 34 Ind. 547. Delivery cannot be proved by subsequent declaration of the donor to persons not connected with the gift. Rockwood v. Wiggins, 16 Gray, 402.

(c) The mutual assent of the parties to the terms of a contract is essential to its