the promise. So long as it is valuable at all, in the sense defined in the previous article it will support the full promise. The question of adequacy of consideration will not be allowed to be put in evidence except for some ulterior purpose, as when it is attempted to prove fraud.

Here the law seems to conflict with the principles of right and justice; but for the court to inquire into the adequacy of a consideration would make nearly all contracts subject to litiga-la tion and the freedom and rights of the individual would be greatly curtailed. This rule as to adequacy, however, does not apply to the exchange of sums of money, for instance, whose absolute values are fixed and known. In this case the consid

eration must be adequate and equal.

When the consideration is grossly inadequate, suit may be brought in equity and the courts will in that case sometimes vary the terms of the agreement in the interest of justice.

Neither is it necessary that the consideration should have any assignable money value, as is plainly implied in the definition of a consideration given in the previous article. Thus mutual promises are each a consideration for the enforcement of the other, but when the promise of one of the parties includes no more than it was already his legal duty to perform, such a promise will not support a promise made by the opposite party. For example, if A owes B a sum of money, and interest thereon which is due, and A promises to pay B the interest if he will extend the loan, which B promises to do, here B's promise to extend the loan is not supported by a valuable consideration and is therefore not enforceable. Again a promise to pay to a public officer more than his lawful fee for the performance of a public duty, is not enforceable.

26. Agreement to Take Less than is Due. A very common case in the execution of contracts is that of an agreement by one of the parties to receive or accept less than the contract calls for. It is important here to distinguish

between sums of money or matters which are in dispute, and sums of money or matters which are not in dispute.

If one of the parties agrees to accept a sum of money less than that which is avowedly due him, such an agreement is not enforceable, because of failure of consideration, unless some condition of performance accompanied the offer which may be construed as a consideration. If, however, the sum of money claimed by A is disputed by the other party B, and never has been acknowledged by B as being the amount owed, then and in that case an agreement on the part of A to accept less than his claim, when accepted by B, is enforceable. This is because no agreement had been made previous to this compromise arrangement.

Similarly an agreement on the part of the owner to accept a less amount of work or a cheaper construction on the part of the contractor than that contained in the written specifications is not enforceable, unless it is supported by some further act on the part of the contractor, or by a corresponding change in the price of the work, which may be construed as a consideration. If, however, the original contract provided for such changes as these by agreement without further consideration, such further agreements simply modify the terms of the original contract and become a part thereof without a new consideration being required.

Where several creditors enter into a mutual agreement among themselves and with the debtor to take less than is acknowledged to be due them, and to discharge their several debts, such an agreement is held to rest on a sufficient consideration, since these mutual promises are evidently for their mutual benefit, and therefore all do receive a valuable consideration in support of such promises.

If it is desired or intended that an agreement shall hold without a corresponding consideration, such as have been referred to above, it is only necessary to execute the new agree

ment under seal, in which case a consideration is not required. When a person brings suit against another or threatens to do so, for a sum of money claimed in good faith to be due, not evidenced by a note or promise to pay, the dismissal of such suit, or a promise not to bring it, is a sufficient consideration for a promise by the party sued, or threatened to be sued, to pay to the claimant a sum of money, or for a promise to do any other lawful act.

In the case of an engineering contract, an agreement by the parties to vary the terms of the original contract, which variation may not have been provided for in such contract, an agreement to vary the conditions in one particular must be supported by a consideration in the way of an agreement to vary the terms of the original contract in some other particular which may be accepted as a consideration, or some other and new consideration must be provided for in order to support such agreement. Thus, if A has agreed to build a house for B in accordance with certain plans and specifications with no provision for changes of plan, if B consents to a change in the plans by which the cost is reduced, without any consideration being agreed upon or mentioned for such change of plans, B has the privilege of changing his mind, and of enforcing the original agreement, since the second agreement was not supported by a consideration. In like manner, should A consent to a change of plans without naming a consideration he can not be held to such an agreement even though it be made in writing, but may continue to carry out the original agreement, which alone is binding. In other words, all subsequent or auxiliary agreements or changes in the original contract not provided for in the original document are in fact new contracts and must each and all be supported by a consideration.

Promises or contracts which have been fully executed can not be inquired into by law, as to whether there may have been

no consideration. Thus money which has been paid without consideration can not be recovered, and for work executed before a promise to pay has been given or implied, no recovery or compensation can be obtained.

Of this general character are gifts which have been made, the article having been delivered to the donee. They can not be recovered, neither can payment for them be enforced. exception to this is where property has been given away to defraud creditors. In this case the person receiving the gift may be compelled to restore it to the creditor, or so much thereof as will discharge the creditor's claim against the donor.

27. As to Waiver of Legal Rights. An apparent exception to the general rule that a promise must be supported by a consideration is an agreement to waive a statutory right of defense. Thus "a promise to pay a debt barred by the statute of limitations, or by a discharge in bankruptcy, though made without consideration is enforceable, and a promise by an endorser of a bill or note to pay it, although the endorser knows that he has been released from all liability, from the note not having been protested when due, is likewise binding." In these cases the new promise is equivalent simply to waiving the legal rights of the party, after which the old promise is again restored to its legal status, which former promise was supported by a consideration.

"But when a debt has been canceled by the act of the parties, as by a release under seal, which would require no consideration, a subsequent promise to pay the debt, notwithstanding the release, is not valid unless supported by a consideration." In this case the former promise or agreement had been obliterated by a subsequent release under seal, and hence a new contract would have to be made.

CONTRACTS UNDER SEAL.

28. Classes of Sealed Contracts. While any contract may be executed under seal, and so become a sealed contract, under the common law, the following must be executed under seal to become binding, namely: (a) Gratuitous promises. (6) Contracts with corporations. (c) Conveyances of real estate. (d) Bonds.

(a) If it is the purpose to make a gratuitous promise legally binding on the parties, it must be executed under seal, and when so executed the absence of a consideration will not invalidate it.

(b) The common law rule that contracts with corporations must be executed under seal no longer obtains in the United States. Here a contract entered into with the proper officers of a corporation is valid without being sealed, the same as though made with an individual, unless the charter of the corporation specifically requires all contracts to be made under

seal.

(c) Deeds and mortgages do still in this country require the presence of a seal, except where a special statute provides otherwise.*

(d) A bond is an instrument under seal whereby one acknowledges himself indebted to another in a specified sum, generally but not necessarily conditioned on the performance of some act. Thus bondsmen or sureties in the case of an engineering contract are those who sign an obligation or acknowledgment of indebtedness in favor of the party letting the work, in a specified sum, conditioned on the faithful execution of the work which the contractor has undertaken to perform. Such an instrument, called a bond, should be executed under seal.

*This is true in Ohio, Indiana, Iowa, Kansas, Nebraska, Tennessee, Texas, Dakota, Kentucky, and Mississippi.