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nothing from a grant) conveys a chose in possession ; a contract executory conveys only a chose in action.
Having thus shown the general nature of a contract, we are, secondly, to proceed to the consideration upon which it is founded; or the reason which moves
“ It is an agreement, *444]
the contracting party to enter into the contract.
upon suficient consideration.” The civilians hold, that in all contracts, either express or implied, there must be something given in exchange, something that is mutual or reciprocal.(h) This thing, which is the price or motive of the contract, we call the consideration : and it must be a thing lawful in itself, or else the contract is void. A good consideration, we have before seen (1) is that of blood or natural affection between near relations; the satisfaction accruing from which the law esteems an equivalent for whatever benefit may move from one relation to another.(j) This consideration may sometimes, however, be set aside, and the contract become void, when it tends in its consequences to defraud creditors, or other third persons, of their just rights. But a contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law; and, if it be of a sufficient adequate value, is never set aside in equity; for the person contracted with has then given an equivalent to recompense, and is therefore as much an owner, or a creditor, as any other person. (*) In omnibus contractibus, sive nominatis, sive innomi
Page 297. natis, permutatio continetur. Gravin. l. 2, 2 12.
(1) 3 Rep. 83. 5 If there be no fraud in the transaction, mere inadequacy of price would not be deemed, even in equity, sufficient to vacate a contract. 10 Ves. 292, 295. 1 Brid. Eq. D. 359. Nor is mere folly without fraud a foundation for relief. 8 Price, 620. And on the question of executing an agreement, hardship cannot be regarded, unless it amount to a degree of inconvenience and absurdity so great as to afford judicial proof that such could not be the meaning of the parties. 1 Swanst. 329. But if there be such an inadequacy as to show that the person did not understand the bargain he made, or that, knowing it, he was so oppressed that he was glad to make it, this will show such a command over the grantor as may amount to fraud. 2 Bro. C. C. 167. 2 Bird. Eq. Dig. 55. An action was brought on an agreement to pay for a horse a barley-corn a nail for every nail in the horse's shoes, and double every nail, which came to five hundred quarters of barley; and, on a trial before Holt, C. J., the jury gave only the value of the horse, (1 Lev. 111;) and in an action of assumpsit, in consideration of 28. 6d. paid and 41. 178. 6d. to be paid, the defendant undertook to deliver two rye-corns next Monday, and double every succeeding Monday, for a year, which would have required the delivery of more rye than was grown in all the world, on demurrer, Powell, J., said, that though the contract was a foolish one, yet it would hold in law, and the defendant ought to pay something for his folly; and the defendant refunded the 2s. 6d. and costs. 2 Ld. Raym. 1164. This seems to have bee
a vacating of the bargain as oid, and a return for that reason of the money received without consideration. See, further, 3 Chitty's Com. L. 158, 159. Bridgm. index, tit. Inadequacy of Price or Consideration.—Chitty.
In bonds, covenants, and instruments under seal, a consideration between the parties is implied conclusively. The seal imports it. A voluntary bond is both at law and in equity a gift of the money. Such a bond must be postponed until creditors are paid: it is fraudulent and void as to them, but it is always good against the party himself, and against heirs, legatees, and others who stand in no higher equity. Shesh vs. Endress, 3 Watts & Serg. 255. Candor & Henderson's Appeal, 3 Casey, 119. Bills of exchange and promissory-notes primâ facie import consideration. As between the original parties to these instruments, they may be rendered ineffectual by proving want of consideration; though as to an endorsee or holder bona fide in the usual course of business this is unavailing. In an ordinary parol contract, whether oral or written, the consideration must be averred in the plaintiff's declaration, and must either appear on its face, or be shown affirmatively by him who seeks to recover on it.
A consideration may be briefly defined to be any benefit, delay, or loss to either party. More fully, a consideration is something that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made. Any damage or suspension or forbearance of a right will be sufficient to sustain a promise. It is not essential that the consideration should be adequate in point of actual value. The law does not weigh the quantum of consideration, having no means of deciding upon that matter; and it would be unwise to interfere with the facility of contracting and the free exercise of the judgment and will of the parties. The law allows them to be the sole judges of the benefits to be derived from their bargain, provided there be no incompe
These valuable considerations are divided by the civilians(k) into four species. 1. Do, ut des : as when I give money or goods, on a contract that I sball be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which there is either an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2. The second species is, facio, ut facias. as, when I agree with a man to do his work for him if he will do mine for me, or if two persons agree to marry together; or to do any positive acts on both sides. Or, it may be to forbear on one side on consideration of something done on the other, as that in consideration A., the tenant, will repair his house, B., the landlord, will not sue him for waste. Or, it may be for mutual forbearance on both sides; *as, that in consideration that A. will not trade to Lisbon, B. will not trade to Marseilles ; so as to avoid interfering with each
[*445 other. 3. The third species of consideration is facio, ut des : when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination of the law to set a value to it. As when a servant hires him. self to his master for certain wages or an agreed sum of money: here the servant contracts to do his master's service, in order to earn that specific sum. Otherwise, if he be hired generally; for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4. The fourth species is, do, ut facias : which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages upon his performing such work: which, we see, is nothing else but the last specius inverted: for servus facit, ut herus det, and herus dat, ut servus faciat.
A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law; and a man cannot be compelled to perform it.(1) As if one man promises to give another 1001., here there is nothing contracted for or given on the one side, and therefore there is nothing binding on the other. And, however a man may or may not be bound to perform it in honour or conscience, which the municipal laws do not take upon them to decide; certainly those municipal laws will not (k) Ff. 19, 5, 5.
(") Dr. and St. D. 2, c. 24. tency to contract, and the agreement violates no rule of law. There is no case where mere inadequacy of price, independent of other circumstances, has been held sufficient to set aside a contract between parties standing on equal ground and dealing with each other without any imposition or oppression. Such an inequality as would amount to fraud, and avoid the contract on that score, must be so strong and manifest as to shock the conscience and confound the judgment of common sense. Hind vs. Holdship, 2 Watts, 104. Silvis vs. Ely, 3 Watts & Serg. 428. This legal principle as to the extent of consideration is in some measure practically modified by an equitable one, which relieves the parties to a contract in equity wherever the consideration of it fails; as where a contract was made upon the expectation of an actual benefit which has not been realized, and that without the fault of the party seeking relief. Bellas vs. Hays, 5 Serg. & R. 427. Miles vs. Stevens, 3 Barr, 21.-SHARSWOOD.
6 This must be read as confined to simple contracts; for no consideration is essential to the validity of a contract under seal, though in some cases creditors may treat voluntary deeds without consideration, as fraudulent and invalid. 7 T. R. 477. 4 East, 200. 2 Sch. & Lef. 228. Fonbl. Treat. Eq. 2d ed. 347, n. f. Plowd. 308, 309. The leading rule with respect to consideration is that it must be some benefit to the party by whom the promise is made, or to a third person at his instance, or some detriment sustained, at the instance of the party promising, by the party in whose favour the promise is made. 4 East, 455. 1 Taunt. 523. A written agreement, not under seal, is nudum pactum without consideration ; and a negotiable security, as a bill of exchange or promissory-note, carries with it prima facie evidence of consideration, which is binding in the hands of a third party, to whom it has been negotiated, but may be inquired into between the immediate parties to the bill, &c. themselves. The consideration for a contract, as well as the promise for which it is given, must also be legal. Thus, a contract for the sale of blasphemous, obscene, or libellous prínts, or for the furtherance of immoral practices, or contrary to public policy, or detrimental to the rights of third parties, or in contravention of the statute law, in all tnese cases the considerations are invalid and the contracts void. See 3 Chitty’s Cum. Law, 63, et seq.-Cutty.
con-pel the execution of what he had no visible inducement to engage for: and therefor our law has adopted (ni) the maxim of the civil law,(n) that ex nudo pacto non oritur actio. But any degree of reciprocity will prevent the pact from oeing nude : nay, even if the thing be founded on a prior moral obligation, (as a promise to pay a just debt, though barred by the statute of limitations,) it is no longer nudum pactum. And as this rule was principally established, to avoice 'the inconvenience that would arise from setting up mere verbal promises, for *446]
which no good reason could *be assigned, it therefore does not holo
in some cases, where such promise is authentically proved by written documents. For if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of a consideration in order to evade the payment: for every bond from the solemnity of the instrument,(p) and every note from the subscription of the drawer,(@)carries with it an internal evidence of a good consideration. Courts of justice will therefore support them both, as against the contractor himself; but not to the prejudice of creditors, or strangers to the contract.
We are next to consider, thirdly, the thing agreed to be done or omitted. “A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing.” The most usual contracts, whereby the right of chattels personal
(*) Bro. Abr. tit. dette, 79. Salk. 129.
Plowd. 306, 309.
(*) Hardr. 200. 1 Ch. R. 157.
? Where a man is under a moral obligation which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration. As if a man promise to pay a just debt, the recovery of which is barred by the statute of limitations; or if a man, after he comes of age, promise to pay a meritorious debt contracted during his minority, but not for necessaries; or if a bankrupt, in affluent circumstances after his certificate, promise to pay the whole of his debts ; or if a man promise to perform a secret trust, or a trust void for want of writing by the statute of frauds. In such and many other instances, though the promise gives a compulsory remedy where there was none before, either in law or equity, yet, as the promise is only to do what an honest man ought to do, the ties of conscience upon an upright man are a sufficient consideration. Ld. Mansfield, Cowp. 290. These are the words of lord Mansfield; but perhaps the promise would only be obligatory in the three first instances. How far moral obligation is a legal consideration, see a learned note to the reports by Messrs. Bosanquet and Puller, 3 vol. p. 249. But if a bankrupt after obtaining his certificate, an infant after coming of age, or any person where the demand is barred by the statute of limitations, promise to pay a prior debt when he is able, it has been held that this is a conditional promise, and that the plaintiff must prove the defendant's ability to pay. 2 Hen. Bla. 116. See further, on this subject, 3 vol. Ch. C. L. 72.-CHRISTIAN.
8 Mr. Fonblanque, in his discussion of the subject of consideration referred to in the last note but one, has taken notice of this inaccuracy. He says—what certainly is fully established—that the want of consideration cannot be averred by the maker of a note if the action be brought by an endorsee; but if the action be brought by the payee, the want of consideration is a bar to the plaintiff's recovering upon it. 1 Štra. 674. Bull. N. P. 274. 1 B. & P. 651. 2 Atk. 182, and Chitty on Bills, 68. An endorsee who has given full value for a bill of exchange may maintain an action both against him who drew it and him who accepted it, without any consideration. 4 T. R. 339, 471. 5 Esp. Rep. 178. 3 Esp. Rep. 46. The most important authority respecting the consideration of written contracts is the case of Rann vs. Hughes before the house of lords, in which lord chief-baron Skynner delivered the unanimous opinion of the judges that an administratrix was not bound by a written promise to pay the debt of her intestate out of her own property. See it reported in 7 T. R. 350. In that case, the chief-baron said that “all contracts are by the laws of England distinguished into agreements by specialty and agreements by parol ; nor is there any such third class as some of the counsel have endeavoured to maintain, -as contracts in writing. If they be merely written, and not specialties, they are parol, and a consideration must be proved.” He observed that the words of the statute of frauds were merely negative; and that executors and administrators should not be liable out of their own estates, unless the agreement upon which the action was brought, or some memorandum thereof, was in writing, and signed by the party. But this does not prove that the agreement was still not liable to be triedi and judged of as all other agreements merely in writing are by the common law, and does not prove the converse of the proposition, that when in writing the party must be 9t all events liable.-CHRISTIAN.
may be acquired in the laws of England, are, 1. That of sale or exchange. ? That of bailment. 3. That of hiring and borrowing.
4. That of debt. 1. Sale, or exchange, is a transmutation of property from one man to another in consideration of some price or recompense in value : for there is no salu without a recompense : there must be quid pro quo.(r). If it be a commutation of goods for goods, it is more properly an exchange; but if it be a transferring of goods for money, it is called a sale; which is a method of exchange intro; duced for the convenience of mankind, by establishing a universal medium, which may be exchanged for all sorts of other property, whereas if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be intolerably cumbersome. All civilized nations adopted therefore very early the use of money; for we find Abraham giving " four hundred shekels of silver, current money with the merchant,” for the field of Machpelah ;(s) though the practice of exchange still subsists among several of the savage nations. But with regard to the law of *sales and exchanges, there is no difference. I shall therefore treat of them both under the denomination of sales only; and shall consider their
[*447 force and effect, in the first place where the vendor hath in himself, and secondly where he hath not, the property of the thing sold.
Where the vendor hath in himself the property of the goods sold, be hath the liberty of disposing of them to whomsoever he pleases, at any time, and in any manner; unless judgment has been obtained against him for a debt or damages, and the writ of execution is actually delivered to the sheriff. For then, by the statute of frauds,(t) the sale shall be looked upon as fraudulent, and the property of the goods shall be bound to answer the debt, from the time of delivering the writ. Formerly it was bound from the teste, or issuing of the writ,(u) and any subsequent sale was fraudulent; but the law was thus altered in favour of purchasors, though it still remains the same between the parties; and therefore if a defendant dies after the awarding and before the delivery of the writ, his goods are bound by it in the hands of his executors.(v)"
If a man agrees with another for goods at a certain price, he may not carry them away before he hath paid for them; for it is no sale without payment, anless the contrary be expressly agreed. And therefore, if the vendor says the price of a beast is four pounds, and the vendee says he will give four pounds, the bargain is struck; and they neither of them are at liberty to be off, provided immediate possession be tendered by the other side. But if neither the money be paid, nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases.(w)10 But if any part of the price is paid down, if it be but a
(*) Noy's Max. c. 42.
(") 8 Rep. 171. 1 Mod. 188.
' If two writs are delivered to the sheriff on the same day, he is bound to execute the first which he receives; but if he levies and sells under the second, the sale to a vendee, without notice of the first, is irrevocable, and the sheriff makes himself answerable to both parties. 1 Salk. 320.1 T. R. 729.-CHRISTIAN.
10 The authorities cited do not support this sentence. It is true that there is no right in the vendee to recover possession of the goods without payment or tender of the price; but that is another thing from saying there is no contract. Nor is what follows true, that, independently of the statute of frauds, part payment or earnest is necessary in such a case to bind the bargain. The statute 29 Car. II. ch. 3, s. 17 (the provisions of which prevail in most of the United States) declares that no contract for the sale of goods for the price of 101. or upwards shall be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind
he bargain or in part payment, or unless some note or memorandum in writing of the bargain be made and signed by the parties to be charged, or their agents thereunto lawfully authorized. It is true that, if nothing of this kind takes place, it is no contract, and the owner may dispose of his goods as he pleases. But at common law, when the terms of sale are agreed on and the bargain is struck, and every thing that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties without actual payment or delivery, and the property and the risk of acci
penny, or any portion of the goods delivered by way of earnest, (which the civi) *448 ]
law calls arrha, and interprets to be “emptionis venditionis *contracto
argumentum,")(x) the property of the goods is absolutely bound by it; and the vendee may recover the goods by action, as well as the vendor may the price of them.(y)" And such regard does the law pay to earnest as an evidence of a contract, that, by the same statute, 29 Car. II. c. 3, no contract for the sale of goods, to the value of 101. or more, shall be valid, unless the buyer actually receives part of the goods sold by way of earnest on his part; unless he gives part of the price to the vendor by way of earnest to bind the bargain, or in part of payment; or unless some note in writing be made and signed by the party, or his agent, who is to be charged with the contract. And with regard to goods under the value of 101. no contract or agreement for the sale of them shall be valid, unless the goods are to be delivered within one year, or unless the contract be made in writing, and signed by the party, or his agent, who is to be charged therewith.” Antiently, among all the northern nations, shaking of hands was held necessary to bind the bargain; a custom which we still retain in many verbal contracts. A sale thus made was called hand-sale, “ venditio per mutuam manuum complexionem ;"(z) till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof.
As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods until he tenders the price agreed on.(a)" But if he tenders the money to (5) Inst. 3, tit. 24.
(5) Stiernhook de jure Goth. 1. 2, c. 5. (*) Noy, ibid.
(a) Hob. 41.
dent to the goods vest in the buyer. 2 Kent's Com. 492. The sale is complete when the terms are either certainly tixed or a rule adopted from which they can be ascertained by measurement or calculation, and when the subject-matter of the sale is definitively and certainly ascertained and distinguished. A sale is defined to be a transmutation of property from one man to another in consideration of some price or recompense in value. When the name of the vendee is written, by his direction or by the direction of his agent, on the articles sold, or the goods are made up to be delivered, or are otherwise separated from a larger quantity of goods of which they formed a part, with a view to deliver, or when the vendee, by the consent of the vendor, deals with the property as his own, it has been construed to be evidence of a delivery so as to enable the vendor to maintain an action for the price, as of goods actually sold and delivered. A man, buying a hat, selects the article which suits him. It is put aside; but, for some reason, it is inconvenient for him to take it with him. He is to send for it, or the vendor is to send it to his lodgings. From that moment there is a change of property: the bargain is complete, and the vendee becomes the owner. Rogers, J., in Parker vs. Donaldson, 2 Watts & Serg. 9. Smyth vs. Craig, 3 Watts & Serg. 14. Scott vs. Wells, 6 ibid. 357.SHARSWOOD.
11 The property does not seem to be absolutely bound by the earnest; for lord Holt has laid down the following rules,-viz., “That, notwithstanding the earnest, the money must be paid upon fetching away the goods, because no other time for payment is appointed; that earnest only binds the bargain and gives the party a right to demand ; but then a demand without the payment of the money is void ; that, after earnest given, the vendor cannot sell the goods to another without a default in the vendee; and, therefore, if the vendee does not come and pay and take the goods, the vendor ought to gu and request him; and then, if he does not come and pay and take away the goods in a convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person." 1 Salk. 113. See 3 Camp. 426.--CHRISTIAN.
12 And this enactment is, by lord Tenterden's act, (9 Geo. IV. c. 14,) extended to all contracts for the sale of goods of the value of 101. sterling or upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of the contract, be actually made, or provided, or ready for delivery, or some act may be requisite for the making or completing thereof or rendering the same fit for delivery.KERR.
13 When, however, the sale is complete and the title vested in the buyer, it is still in the power of the seller to reclaim the possession of the goods in case of the insolvency of the purchasor, provided they have not come to his actual possession. This is called the vendor's right of stoppage in transitu. It does not proceed upon the ground of rescind. ing the contract. It assumes its existence and continuance; and, as a consequence, the