case it appeared that the ordinance in question was passed for aesthetic reasons and it was held invalid and unconstitutional.

За

The Cusack case does not mean that the city has the right to prohibit the erection of these boards entirely in residential districts. In the case of the City of Chicago v. The Gunning System,3 an ordinance similar to the one in the Cusack case was held to be unconstitutional because of lack of evidence to show that the purpose of the legislation was to advance public health and secure public safety. There have been several cases in New York similar to the Cusack case and the Court of Appeals has distinguished them from cases involving laws passed for aesthetic purposes, and held that they were in no way inconsistent with the general rule that aesthetic considerations could not be a ground for taking private property under the police power.4 Wherever ordinances regulating billboards have been upheld it has been on the ground that they were adopted to secure public safety, health, and morals. The billboard many times provides a place where the criminal may hide, where garbage and refuse accumulates and where immoral practices may be carried on. Wherever it is clearly shown that the object of the ordinance is to relieve these conditions and not to satisfy the artistic tastes of some of the community, it will be upheld."

It seems that a regulation that the bottom of the billboard shall be a certain distance off the ground, or that the board shall be only of a certain height, or that it shall be made of certain material and so constructed as to prevent it from falling over, when such regulation is considered by the court to be reasonable, and there is evidence that it will add to the public safety, will be upheld. A regulation requiring the consent of the common council before a billboard can be erected will be upheld. So will a regulation requiring that in residential districts the written consent of a certain percentage of the property owners must be obtained before the board can be erected, provided that evidence is submitted showing that this regulation is reasonable and calculated to promote public safety. But a regulation providing that the billboard be placed a certain distance from the street will not be held valid. If this provision is included in an ordinance along

3214 Ill. 628 (1905).

3a Note 7, infra.

"Note 2, supra. See also Crawford v. City of Topeka, 51 Kan. 756 (1893); State v. Whitlock, 149 N. C. 542 (1908); Curran Bill Posting Co. v. City of Denver, 47 Colo. 221 (1910); People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126 (1909); People ex rel. Standard Bill Posting Co. v. Hastings, 77 Misc. (N. Y.) 453 (1912), aff'd without opinion, 153 App. Div. (N. Y.) 920.

5St. Louis Gunning Co. v. City of St. Louis, 235 Mo. 99 (1911); Kansas City Gunning Co. v. Kansas City, 240 Mo. 659 (1912); Ex parte Savage, 63 Tex. Cr. R. 285, 290 (1911); Horton v. Old Colony Bill Posting Co., 35 R. I. 507 (1914); Cream City Bill Posting Co. v. Milwaukee, 158 Wisc. 86 (1914); State v. Staples, 157 N. C. 637 (1911).

Note 5, supra.

"City of Rochester v. West, 164 N. Y. 510 (1900); Gunning System v. City of Buffalo, 75 App. Div. (N. Y.) 31 (1902); Whitmier & Filbrick Co. v. City of Buffalo, 118 Fed. 773 (1902).

City of Chicago v. Gunning System 214 Ill. 628 (1905); Thomas Cusack Co. v. City of Chicago, 242 U. S. 526 (1917).

Note 4, supra.

with other provisions which would by themselves be valid, it will in most cases be held to invalidate the whole ordinance.10 In some cases, however, an ordinance of this character has been held valid in all respects, it being thought that the purpose of the ordinance as a whole was to provide for the public safety. An attempt to include in an ordinance regulating billboards, signs painted upon the walls of buildings, is invalid and invalidates the whole ordinance. 12 An attempt to prohibit billboards entirely in any particular locality or section is invalid.13

It may be thought that the courts have used the argument that the billboard is a danger to public safety, health, and morals simply as a means of arriving at a result, and that the real purpose of the courts, where these regulatory ordinances have been upheld, was to give effect to aesthetic tastes. A reading of the cases will not bear out this contention.

Harry H. Hoffnagle, '17.

Contracts: Performance of existing contract as consideration: Consideration in ante-nuptial contracts.-In the case of De Cicco v. Schweizer, 221 N. Y. 431 (1917), there was involved the vexed question as to whether any consideration is to be found in a transaction where A makes B a promise for B's performance of an existing contract obligation due to C, and there was also involved the question whether a promise made in contemplation of marriage must be supported by consideration. In that case, the defendant's daughter and an Italian Count were engaged to be married. Thereafter, the defendant and the Count executed "articles of agreement," in which it was recited that, whereas, the defendant's daughter “is now affianced to and is to be married" to the Count, the defendant promised to pay his daughter $2,500 annually. The daughter and the Count were married two days after the execution of the agreement. The yearly payments were regularly made for some years, and this action was brought by the assignee of the daughter and the Count to recover a payment which the defendant had refused to make. The case turned on the question whether there was any consideration for the promised payments and the Court of Appeals held that there was consideration.

If consideration is necessary to support an ante-nuptial promise to settle property or pay money, (a point to be discussed later), was there any consideration in the principal case? In the first place, it is settled in New York that neither the promise to perform nor the performance of an existing contract is consideration for the promise of a third person.1 Therefore, in the principal case, the marriage of the daughter and the Count was not consideration for the defendant's promise, for the former, by marrying, were only doing what they were

10Note 4, supra.

"Note 5, supra.

12Anderson v. Shackelford, 76 So. (Fla.) 343 (1917).

18 People v. Green, 85 App. Div. (N. Y.) 400 (1903); Bryan v. City of Chester, 212 Pa. 259 (1905); Commonwealth v. Boston Adv. Co., 188 Mass. 348 (1905). 1Robinson v. Jewett, 116 N. Y. 40 (1889); Arend v. Smith, 151 N. Y. 502 (1897); Carpenter v. Taylor, 164 N. Y. 171 (1900).

already legally bound to do and therefore suffered no legal detriment. Nor could the rule of the leading Massachusetts case2 be here invoked, viz., that where the promisor receives a benefit from the performance by the promisee of his contract with another, the promise will be enforced. There were no facts or inferences in the principal case to show that the defendant received any benefit from the marriage of his daughter. Nor is there any consideration in not breaking the preexisting contract, because a person is not thereby giving up a "right," for though he has the power, he has no "right" to break a contract.3 In commenting on Shadwell v. Shadwell, in which it was held that performance by B of an existing contract with C was consideration for a promise by A to B, Anson suggests that consideration may be found in B's abandonment of the right to rescind his contract with C. But it is difficult to see how merely failing to rescind could be sufficient, unless there was proof that the willingness of C made rescission possible, and, therefore, made refraining from it a detriment.

The court in the principal case considered the promise of A (the defendant) as made to both B and C (the Count and the daughter), because, though made in form to the Count, yet it induced the conduct of both, was intended for the benefit of the daughter and by her acting upon it she adopted it and became a party to it, entitled to enforce it. The court thus reached the conclusion that A's promise was made to both B and C, and held that the abandonment by B and C of their right to rescind their contract was a sufficient consideration for A's promise. But even in such a case there should be some evidence that there was a mutual contemplation of rescission and willingness to rescind and that A's promise was made for the purpose of inducing them not to rescind, or, even if they were not then contemplating rescission, that A's promise was made to induce them never to exercise their right to rescind, if they should ever desire to do so. If, however, such proof were present, there would be no reason, on principle, why abandoning the right to rescind would not be consideration, since yielding that right is a legal detriment, i. e., something that the promisee was not legally bound to do.

There was no direct proof in the principal case that abandoning the right to rescind was intended to be the consideration, and it is not a necessary inference that the promise was made for such purpose or that the promise induced the parties to go on with the contract. It is a natural inference that the promise was meant to be gratuitous and that the motive for it was the engagement of the daughter and her future happiness. It is also a natural inference that the parties were

"Abbott v. Doane, 163 Mass. 433 (1895).

Robinson v. Jewett, supra, note 1; Arend v. Smith, supra, note 1.

49 C. B. (n. s.) 159 (1860). The facts of this case were similar in many respects to the principal case. The defendant's testator wrote to his nephew, the plaintiff, as follows: "My dear Lancey. I am glad to hear of your intended marriage with Ellen Nicholl; and, as I promised to assist you at starting, I am happy to tell you that I will pay to you one hundred and fifty pounds yearly during my life, etc." In an action by the nephew to recover, after his marriage with the lady named, the arrears of the annuity promised he was permitted to recover at law.

'Law of Contract, (Huffcut's 2nd Amer. ed.), p. 123. "Gifford v. Corrigan, 117 N. Y. 257 (1889).

induced to fulfill their engagement by their mutual love and affection and not by the fact that if they would refrain from rescinding, they would be amply remunerated.

* * *

But perhaps it was justifiable to strain the facts and inferences to reach the conclusion that the parties to the contract did refrain from rescinding in consideration of the defendant's promise, for, as the court remarked, "The law favors marriage settlements and seeks to uphold them. It has enforced them at times where consideration, if present at all, has been dependent upon doubtful inference. It strains to the uttermost the interpretation of equivocal words and conduct in the effort to hold men to the honorable fulfillment of engagements designed to influence in their deepest relations the lives of others."

But even where there is evidence that the parties did abandon their right to rescind in consideration of the promise, yet in cases involving marriage there is an additional difficulty. Suppose that B and C are engaged to be married and that both of them are willing to rescind because of incompatibility, and their later conviction that they are unsuited to each other, and that they would rescind but for the promise of A. Would not A's promise in return for such a restraint be void as against public policy? On the other hand, if the mutual willingness to rescind were due to financial or similar difficulties, a promise by A would not be against public policy.

There is also a suggestion in the principal case that consideration for A's promise might be found in the mutual abandonment by B and C of their right to delay the marriage. This might well be consideration, but the facts do not disclose that the promise of the defendant contemplated this, or that because of the promise the marriage occurred at any other time than had been theretofore arranged. If it were the fact that the promise called for the marriage to be celebrated before the time agreed upon by the parties, there is doubt as to whether such an agreement accords with public policy, for it has been held that a contract to hasten an intended marriage is as obnoxious as a contract to bring about a marriage between strangers.8

Another pertinent question arises. How far will the Court of Appeals consider as a precedent the rule laid down in the principal case, that the refraining from the right to rescind an existing contract is consideration for the promise of a third person? Suppose that a case arises where some third person makes a promise to induce the continuance of a building contract by the contractor and the owner. Will the court follow the principal case and hold that the refraining by the contractor or owner, or both, from the right to rescind is consideration? Or will the court hold that the rule now laid down is to be limited to cases whose facts are identical with those of the principal case?

One may concede, however, that it should be held in any case, if there is sufficient evidence thereof, that refraining or the promise to refrain from the right to rescind a pre-existing contract is considera

'Morrison v. Rogers, 115 Cal. 252 (1896), in which it was held that a contract to promote the carrying out of an existing agreement of marriage is invalid as being contrary to public policy.

'Jangraw v. Perkins, 76 Vt. 127 (1903).

tion for the promise of a third person to either or both of the parties to the pre-existing contract.

It is argued in the concurring opinion in the principal case that in cases of this character, i. e., marriage settlements and portions, no consideration is necessary to enforce the promise. The authority for this is found in Phalen v. U. S. Trust Co.,9 where it was said, "The strict legal definition of consideration need not here be discussed, since marriage settlements have always been regarded as exceptions to the general rule upon this question." It is submitted, first, that consideration is necessary to support such promises, and, second, that there was a sufficient consideration in the Phalen case.

By the English custom of marriage settlements and portions, persons who are to be married, and their parents, enter into negotiations concerning the intended marriage and during these negotiations there are made not only the mutual promises to marry, but also promises by either or both of the persons to be married, or by their parents, to settle certain property upon or to pay a certain amount of money to either one of the persons to be married, usually the intended wife. Then during or after these negotiations, a formal agreement, called "marriage articles," is executed, which contains these promises. Thus the promise to make a settlement or pay a portion is made just as much a part of the contract to marry as are the mutual promises to marry, and the promise to make a settlement or pay a portion finds consideration in the promise to marry or the marriage. It has been held that a promise to marry or the marriage "is a consideration of the highest value,"10 and will support a promise, even though made by a third person." 11

At common law, all existing obligations between husband and wife were extinguished by the marriage, 12 and hence marriage settlements between them were unenforcible at law. For this reason, equity took jurisdiction of marriage settlements between husband and wife, 13 or settlements made by a third person,1 even where the payment of money was promised.15 But where a settlement contained executory covenants, equity required a consideration for them or it would not enforce them, for it was a rule of equity that voluntary covenants would not be enforced.16 But this difficulty was seldom, if ever, encountered, for, as seen above, the arrangements for the marriage usually made the covenant to settle a part of the contract to marry, such covenant being supported by the promise to marry or the marriage, as consideration. Moreover, it has been held that equity will not compel the specific performance of a marriage settlement, unless 186 N. Y. 178 (1906).

10Verplank v. Sterry, 12 Johns. (N. Y.) 536 (1815); Magniac v. Thompson, 7 Peters (U. S.) 348 (1833); Prewit v. Wilson, 103 U. S. 22 (1880).

11Wright v.

Wright, 114 Iowa 748 (1901); Arnold v. Estis, 92 N. C. 162 (1885); Barr v. Hill, Add. (Pa.) 276 (1795).

12 Butler v. Butler, 14 Q. B. D. 831 (1885).

13 Johnston v. Spicer, 107 N. Y. 185 (1887).

14Wankford v. Fotherley, 2 Vern. (Eng.) 322 (1694); Halfpenny v. Ballet, 2 Vern. (Eng.) 373 (1699).

15 Wankford v. Fotherley, supra, note 14.

16 Pulvertoft v. Pulvertoft, 18 Ves. (Eng.) 84 (1811); Edwards v. Jones, I Myl. & C. (Eng.) 226 (1836); Jefferys v. Jefferys, Craig & P. (Eng.) 138 (1841); Burling v. King, 66 Barb. (N. Y.) 633 (1873).