« ForrigeFortsett »
III. Of the consideration.
It is essential to the validity of a contract, that it be founded on a sufficient consideration. It was an early principle of the common law that a mere voluntary act of courtesy would not uphold an assumpsit, but a courtesy showed by a previous request would support it. a
of summons on any member of it out of that state, is null. Middlebrooks v. Springfield F. Ins. Co., 14 Conn. Rep. 301. Chancery may likewise, in the exercise of its jurisdiction in personam, and when the ends of justice require it, enjoin a party from proceeding in a suit in any court in any other country. See supra, p. 124. But this exercise of power has been declared, as we have already seen, (see vol. i. 409. 411.) not to extend to the federal courts in respect to the state courts, nor to the state courts in respect to the federal conrts. This is founded on the nature of our federal government, and on indispensable principles of policy.
Mr. Justice Story, in his Commentaries on the Conflict of Laws, (and the 2d edition of which, in 1841, was corrected and greatly enlarged,) has reviewed and discussed the extensive and complicated snbject of the lex loci in all its relations and incidents, with his usual exhausting research and sound critical sagacity. He has brought to bear upon the subject, and to enlighten it, an immense fund of foreign learning, and there is no treatise extant on the subject of the conflict of laws, so accurate, full and complete. There was no one head of the law that stood so greatly in need of such an effort. The doctrines under that head are more interesting than any other, with the exception, always, of the constitutional doctrines of the government of the United States; and they are more constant in their application, cousidering that the Union is composed of twenty-six state jurisdictions, dictating and administering independently their own municipal laws. It was impossible, in this brief section, to do more than state the leading principles of the doctrine, and the authorities which sustain them; and this I have endeavoured to do with the lights afforded mo by a thorough examination of the treatise alluded to, and of all the authori. ties, foreign and domestic, applicable to the subject, and within my power to examine.
• Lampleigh v. Brathwait, Hob. 105. But it is understood to be now settled, that in a case of simple contract, if one person makes a promise to another for the benefit of a third party, the third party may maintain an action upon it, though the consideration does not move from him. Dutton v. Poole, 2 Led. 210, S. C. 1 Vent. 318. 3 Bos. f Pul. 149. notes, to Piggott v. Thompson, Schermerhorn v. Vanderheyden, 1 Johnson's R. 140. Starkey v. Mill, Sty. 296. Cumberland v. Codrington, 3 Johns. Ch. R. 254. Parker, Ch. J., in 17 Mass. R. 400. 3 Pick. 91. Hormer, Ch. J.,
There must be something given in exchange, something that is mutual, or something which is the inducement to the contract, and it must be a thing which is lawful and competent in value to sustain the assumption. A contract without a consideration is a nudum pactum, and not binding in law, though it may be in point of conscience; and this maxim of the common law was taken from the civil law, in which the doctrine of consideration
is treated with an air of scholastic subtlety. *464 "Whether the agreement be verbal or in writing, it
is still a nude pact, and will not support an action, if a consideration be wanting. This was finally settled in England, in the house of lords, in Rann v. Hughes, b and the rule has been adopted, and prevails extensively, in this country. The rule, that a consideration is ne
in 7 Conn. R. 347. Barker v. Buckler, 2 Denio. R. 45. Walworth Chancellor, 2 Denio, 417.
Dig. lib. 2. tit. 14. ch. 7. sec. 4. Id. 19. 5. 5. Though a sale without a price was not binding as such by the Roman law, yet it might, under circumstances, operate as a donation, if accompanied with delivery. Voot. Com. ad pand. 18. 1. 1. D’Orgenoy v. Droz, 13 Louisiana Rep. 382. 389. Sir William Blackstone, in his Commentaries, vol. ii. p. 444, has borrowed and explained the distinctions in the Pandects upon the four species of contracts, of do ut des. do ut facias, facio ut des, and facio ut facias. This classification of contracts embraces all those engagements which relale to the interchange of commodities, money, or labour, as, 1. Stipulations mutally to give ; 2. Stipulation on the one part to give, in consideration of something to be done or forborne on the other part; 3. Stipulation on the one part to do or forbear, in consideration of something to be given on the other part ; 4. Stipulations mutually to do or forbear to do. Each of them implies a reciprocity of benefit. A unilateral engagement gratuitously made, binds the offerer until rejected, or the acceptance be unduly delayed, according to the French, Dutch and Scotch law, Touillier, Droit Civil Français t. 6. n. 30. Code de Commerce de Hollande, art. 1. p. 65. Bell on the Contract of Sale, Edin. 1844. p. 34. In England it is a nudo pact and no contract. See Infra. p. 477.
6 7 Term Rep. 350. note. 7 Bro. P. P. 550. S. C.
- Burnott v. Bisco, 4 Johns. Rep. 235. Thatcher v. Dinsmore, 5 Mass. Rep. 301, 302. Homer v. Hollenback, 2 Day's Rep. 22. Cook v. Bradley, 7 Conn. Rep. 57. Brown v. Adams, 1 Stewart's Ala. Rep. 51. Bever. loys v Holmes, 4 Munf. Rep. 95. Parker v. Carter, Ibid. 273.
cessary to the validity of a contract, applies to all contracts and agreements not under seal, with the exception of bills of exchange, and negotiable notes, after they have been negotiated and passed into the hands of an innocent endorsee. The immediate parties to a bill or note, equally with parties to other contracts, are affected by the want of consideration ; and it is only as to third persons, who come to the possession of the paper in the usual course of trade, without notice of the original defect, that the want of a consideration cannot be alleged.a The rule, with this attending qualification, is well settled in English and American law, and pervades the numerous cases with which the books abound. In contracts under seal, a consideration is necessarily implied in the solemnity of the instrument; and fraud in relation to part of the consideration is held to be no defence at law : though fraud in respect to the execution of the specialty, and going to render it void, is a good defence.b *A valuable consideration is one that is either a *465 benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made.c
• Bay v. Coddington, 5 Johns. Ch. Rep. 54.
• Dale v. Roosevelt 9 Cowen's Rep. 307. The N. Y. Revised Statutes, vol. ii. p. 406. sec. 77, 78, declare that a seal is only presumptive evidence of a sufficient consideration, and liable to be rebutted equally as if the instrument was not sealed, provided such a defence be made by plea or by notice, under the general issue. This statute provision was an innovation upon the common law rule. Case v. Broughton, 11 Wendell'8 Rep. 106. It is not to be understood that a voluntary bond would be enforced, if it be admitted by the obligee by pleading or otherwise, that it was executed without any consideration. The principle is, that a bond, from the solemnity of the instrument, implies a consideration, and the defendant is estopped by the seal, from averring a want of it. Wright v. Moor, 1 Ch. Rep. 84. Turner v. Sir George Binton, Hardress, 200. 2 Blacks. Com. 446. Sedgwick, J., and Parsons, Ch. J., 2 Mass. Rep. 162. In Indiana, by statute, (R. Statutes, 1838, p. 451,) consideration of specialties and other contracts (conveyances of real estate and negotiable paper excepted) may be inquired into under special plea, or if given in evidence on a trial at law.
• Jones v. Ashburnham, 4 East's Rep. 455. Lent v. Padelford, 10 Mass. Rep. 236. Patterson J., 2 Adolph. f Ellis, n. 5. 859.
Any damage, or suspension, or forbearance of a right, will be sufficient to sustain a promise. A mutual promise amounts to a sufficient consideration, provided the mutual promises be concurrent in point of time; and in that case the one promise is a good consideration for the other. But if two concurrent acts are stipulated, as delivery by the one party, and payment by the other, no action can be maintained by either, without showing a performance, or what is equivalent to a performance, of his part of the agreement.c If the consideration be wholly past, and executed before the promise be made, it is not sufficient, unless the consideration arose at the instance or request of the party promising; and that request must have been expressly made, or be necessarily implied, from the moral obligation under which the party was placed ; and the consideration must have been bene
• Seaman v. Seaman, 12 Wendell's Rep. 381. Morton v. Burn, 2 Neville f- Perry, 297.
• Where several persons subscribe to raise money for an object in which all feel an interost, tho mutual promises of the subscribers form a valid consideration for the promise of each. But the agreement of a single person to make a donation to a public institution, without any undertaking on the part of the donee to do any thing, is without consideration and void. Walworth, Chancellor, 2 Denio R. 416, 417. If an agreement be optional as to one of the parties, and obligatory as to the other, it does not destroy its mutuality, if there be a sufficient consideration on both sides ; as if one party stipulates that he will deliver salt when called on, and the other that he will pay for the salt so delivered. This is mutuality, and one promise is in consideration of the other. Clerry v. Smith, 3 Hump. Tenn. R. 19.
. If the act or duty to be performed by A., and in consideration of which B. promises to pay, bo such, that it cunnot, or from its nature may not be performed before the time fixed for payment by B., then A. may sue for the monoy without averring porformance. But if the time be fixed for the payment to be made in consideration of the act, and the act be of such a nature that it may be done presently, and before the time of payment, then the act becomes a precedent condition to the payment. Thorpe v. Thorpe, 1 Salk. 171. 1 Lord Raym. 665. S. C. Colonel v. Briggs, 1 Salk. 113. Pardage v. Cole, 1 Saund. 319. Trimble v. Green, 3 Dana's Ken. Rep. 356, 357. In this last case, the distinctions to be drawn from the authorities, are justly and skilfully taken.
ficial to the one party, or onerous to the other.a A subsisting legal obligation to do a thing, is a sufficient consideration for a promise to do it; but it has been an unsettled point, whether a mere moral obligation be, of itself, a sufficient consideration for a promise, except in those cases in which a prior legal obligation or consideration had once existed. The weight of authority is that it is not sufficient.b Though the consideration of natural love
• Jenkins v. Tucker, 1 H. Blacks. Rep. 90. Livingston v. Rogers, 1 Caines' Rep. 584. Comstock v. Smith, 7 Johns. Rep. 87. Hicks v. Burhans, 10 Johns. Rep. 243. Garrett v. Stewart, 1 M'Cord's S. C. Rep. 514. Wing v. Mill, 1 Barnu. f Ald. 104.
• Smith v. Ware, 13 Johnson, 257. Edwards v. Davis, 16 Ib. 281. Mills v. Wyman, 3 Pick. Rep. 207. Cook v. Bradloy, 7 Conn. Rep. 57. Dodge v. Adams, 19 Pick. 429. Eastwood v. Kenyon, 3 Perry f. Davison, 276. S. C. 11 Adolph. & Ellis, 348. Beaumont v. Reeve, K. B. Hil. 1846, N. Y. Legal Observer, June 1846. Ehle v. Judson, 24 Wendell, 97. The question, how far a mere moral obligation was sufficient to raise and support an assumpsit, is learnedly and clearly stated and discussed, in the note to 3 Bos. J Pull. 249, and the note to 16 Johns. Rep. 233; and the conclusion to which the learned editors arrived, seems to have been adopted in the cases referred to. And yet, in one of the cases, (Lee v. Muggeridge, 5 Taunt. Rep. 36,) Gibbs, J., observed, that it could not now be disputed, that wherever there is a moral obligation to pay a debt, or perform a duty, a promise to pay that debt, or perform that duty, would be supported by the previous moral obligation. There is a strong instance in Fairchild v. Bell, Brevard's M. S. Rep. cited in 1 Rice's S. C. Dig. p. 60, in support of the implied contract to pay for a meritorious service, founded on a moral obligation. The same doctrine is laid down by Baillies, J., in Barlow v. Smith, 4 Vermont Rep. 144, and in Glass v. Beach, 5 Ibid. 193 ; but the promise must be express and not implied. Lord Tenterden, in Littlefield v. Shee, 2 Barn. f. Ad. 811, admitted the doctrine, that a moral obligation was a sufficient consideration for an express promise, though he said that it must be received with some limitation. It is difficult to sur. mount the case stated by Lord Holt, in 1 Lord Raym. 389, that a promise to pay a debt contracted in infancy is valid. In the case of Eastwood v. Kenyon, Lord Denman observed, that the case of Lee v. Muggeridge, was decidedly at variance with the doctrine in the note to 3 B. & Puller, 249, and 80 was the decision in Littlefield v. Shee, and Lord Denman concluded that a past benefit, not conferred at the request of the defendant, would not support a subsequent promise to pay, and that this conclusion was justified by the old common law, and that the principle of moral obligation