executed contract, but it is not sufficient to support an executory contract.

If a father promises his son, in consideration of natural love and affection, that he will furnish him as a gift upon his arriving of age, with $10,000.00 to engage in business, and when his son becomes of age he furnishes him with the promised capital, he cannot afterwards, upon changing his mind recover back the money. The contract in such case is said to be executed and cannot be revoked or annulled. On the other hand, if the father had refused to keep his promise and would not pay over the money when the son became of age, the son could not maintain an action against the father for his refusal, because a good consideration will not support an executory or future undertaking. All executory undertakings must be supported by a valuable consideration.

57. What constitutes a valuable consideration. The test of a valuable consideration is whether or not a party to whom a promise is made does something, or promises to do something because of the promise or offer thus made. If he does, there is an agreement, supported by a valuable consideration, which is enforceable whether it is executed in whole or in part, or entirely executory.

An uncle promised his nephew that he would pay the expenses of the latter's European tour, and the nephew, relying upon the promise, made the trip, expending his own money. It was held that he was entitled to recover the sum from his uncle, because the nephew did that which he would not have done but for the promise of the uncle.

A client expressly agrees to pay his attorney $500.00 for certain professional services, and the services are rendered in entire conformity to the contract. The client cannot escape his obligation to pay the stipulated fee on the ground that the services were not valuable to him, because the attorney did that which he would not have done but for the promise made to him.

A gave his promissory note to B for $1,000.00 in consideration that B should name his child after A. The contract is enforceable. "When a party," said the court in this case, "contracts for the performance of an act which will afford him pleasure, gratify his ambition, or please his fancy, his estimate of value should be left undisturbed, unless, indeed, there is evidence of fraud."

An uncle promised his nephew $5,000.00 if the latter would refrain from drinking liquor, using tobacco, or playing cards or billiards until he shouid become twenty-one years of age. The nephew having accepted the offer and performed his part of the agreement, was held to be entitled to recover the promised sum from his uncle. He forbore, because of the promise made to him, to do that which he otherwise was at liberty to do.

58. Consideration need not be adequate. Rule: The adequacy of the consideration is left entirely to the parties to the agreement. The law does not inquire whether the benefit to the promisor, or the injury or detriment to the promisee, is equivalent to the thing to be done or received by the other party, but it must be of some value in the eyes of the law.

If the courts should pass upon the question of the adequacy of the consideration for the promise they would be engaged in making bargains for the parties, a proceeding which would violate the fundamental principle that there should be the utmost liberty in the making of contracts. "The value of all things contracted for," says Hobbes, "is measured by the appetite of the contractors, and, therefore, the just value is that which they be contented to give."

59. Gratuitous subscriptions. Rule: When a gratuitous subscription has been made it is binding if advances have been made or liabilities incurred upon the faith thereof.

A subscribes $500.00 for the purpose of erecting an Athenaeum in the City of New York, to be paid when the whole amount of $25,000.00 should have been subscribed. The committee having obtained the required amount, and having made contracts, erected and completed the building, relying upon the good faith of the subscribers, makes A liable on his subscription.

60. Forbearance from suit as a consideration. Rule: The abandonment of a right, or a promise to forbear from exercising it, is a good consideration for a promise.

It is not sufficient, however, unless the person forbearing really believes he has a case; so that a forbearance to sue on an unfounded claim is not a good consideration.

A had a bona fide claim against B, and put it into the hands of a lawyer for collection. The lawyer exhibited it to B and his father, C, and said he

was going to bring suit. Thereupon the father took from his son a bill of sale of his son's property. When A heard of this, he said to B, "that he was going to send the sheriff up that day; that he was not going to stop for the bill of sale; it was all a fraud." C, the father, replied, "You keep quiet and you shall have your money; I guess I am worth it." A, relying upon this promise, directed his lawyer to stop further proceedings, and this forbearance was held to be sufficient consideration for the father's promise. There was the offer of a promise for an act; the doing of the act is the acceptance of the promise and completes the contract. In other words, A did that which he would not have done but for the promise of the father.

61. Insufficient consideration. It remains to point out certain resemblances of consideration which the courts have refused to allow to support a promise. They may be classified under four heads:

1. Moral obligations.

2. Past consideration.

3. Impossible consideration.

4. Promise to do what a party is bound to do.

62. Moral obligations. A party may make a promise, because he believes himself to be under a moral obligation, either because he has received benefits in the past, or from motives of piety, delicacy or friendship.

A student having refused the payment of a loan made him by the principal of the college, the latter wrote the student's father, who replied that he would pay the sum loaned, although he was under no obligation for his son's support. The father is morally, but not legally, bound by his promise, because the consideration is past, and a past consideration will never support a promise. In other words, the principal of the college did not do anything because of the promise made to him. Had the promise of the father been made before the money was loaned, and the principal made the loan because of said promise, then the promise would have been enforceable because the principal did that which he would not have done but for the promise made.

63. Past consideration. Rule: Where a person receives a benefit, and, at the time such benefit was received, he incurred

no liability, and subsequently he makes a promise to pay for such benefit, the consideration for such promise is said to be past.

A furnishes B board and room gratis for the winter. In the spring B promises to pay for the accommodations received. His promise is unenforceable, because when he received the benefit he was under no legal liability to pay for the same.

It is very essential that the student should remember the following important exception to the above rule, viz: If there has been some pre-existing legal obligation which cannot be enforced because barred by the Statute of Limitations, such legal obligation is a sufficient consideration to support a new promise to pay such a debt.

A becomes indebted to B January 1, 1891, in the sum of $500.00. On February 1, 1894, B sued A, but failed to recover, because A had been released, January 1, 1894, by the Statute of Limitations, which in his state is three years. (See table, Chap. XXV.) If A, although not obliged to, had promised to pay the debt at any time after he had been released, then the preexisting legal obligations would be sufficient consideration for the new promise.

64. Impossibility. Rule: A promise to do a thing impossible in fact or in law is not a consideration; hence the promise upon which it is founded cannot be enforced. But the impossibility must be natural or physical, not merely personal to the promisor. The fact that its performance will be difficult is no

excuse.

65. Promise to do what a party is bound to do. Another form of insufficiency of consideration arises where the alleged consideration is a promise to do or actually doing what a man is already bound by law to do for the promisor. The promisor gets nothing more than he is already entitled to. Therefore he is not bound to fulfill his promise, even though it was this that induced the other party to do what he did.

Thus, where in the course of a voyage from Philadelphia to West India and back two seamen deserted, and the captain promised the rest of the crew that if they would work the vessel home he would divide the wages of the

two deserters among them, this promise was held not to be binding for want of consideration. Before they sailed from Philadelphia they had undertaken to do all they could under all emergencies that might arise during the voyage. The desertion is to be considered an emergency of the voyage. The sailors promised no more than their contract already bound them to do. A promise to compensate an officer in consideration that he makes an arrest is void, because the counter-promise of the officer is no more than he is already bound to do.

1. Define consideration.

QUESTIONS

2. What constitutes a good consideration? Illustrate.

3. What kind of undertakings must be supported by a valuable consideration?

4. What constitutes a valuable consideration? Illustrations.

5. Who determines the adequacy of consideration?

6. When is a gratuitous subscription binding?

7. When is forbearance from bringing a suit a good consideration?

8. Give some examples of insufficient considerations.

9. Illustrate the principle that a moral obligation will not support a promise.

10. Give an exception to the rule that a past consideration will not support a promise.

11. What is meant by past consideration?

12. Must the consideration equal the promise in value?

13. What instruments have presumptive consideration? 14. What is meant by an executed consideration?

CASES

(GIVE REASONS FOR YOUR ANSWERS)

1. A father promised his son that he would give him $100.00 if he would not smoke until he was twenty-one years of age. The son abstained from smoking until he was of age, when his father refused to pay the money. Can the son maintain a suit to compel the father to keep his agreement? 2. A man deeded a farm to his wife for the consideration of love and affection. As between the parties is this a valid deed?

3. An uncle promised his nephew that he would give him $1,000.00 when the nephew became twenty-one years of age, to start him in business. When the time arrived the uncle refused to pay the money. Can the nephew enforce payment?

4. An uncle promised to reimburse a nephew for the expenses of a pleasure trip to Europe, and on the strength of this promise the nephew made the