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arrests and suspends or terminates litigation. Thus the com promise, or forbearance, or mutual reference to arbitration, or any similar settlement, of a suit, or of a claim, is a good con sideration for a promise founded upon it. And it is no defense to a suit on this promise, to show that the claim or suit thus disposed of would probably have been found to have no foundation or substance. If there be an honest claim, which he who advances it believes to be well grounded, and which within a rational possibility may be so, this is enough; the court will not go on and try the validity of the claim or of the suit in order to test the validity of a promise which rests upon its settlement; for the very purpose for which it favors this settlement is the avoidance of all necessity of investigating the claim by litigation. But for reasons of public policy, no promise can be enforced of which the consideration was the discontinuance of criminal proceedings; or any conduct by which public interests are harmed, as, for example, the procurement of the passage of a law by corrupt means. If any
work or service is rendered to one, or for one, and he requested the same, it is a good consideration for a promise of
a payment; and if he makes no promise, the law will imply the promise, that is, will suppose that he has made it, and will not permit him to deny it. The rule is the same as to payment for goods, or property of any kind, delivered to any one at his request.
No person can make another his debtor against that other's will, by a voluntary offer of work, or service, or money, or goods. But if that other accept what is thus offered, and retain the benefit of it, the law will, generally, imply or presume that it was offered at the request of that other party, and will also imply his promise to pay for it, and will enforce the promise ; unless it is apparent, or is shown, that it was offered and received as a mere gift.
A promise is a good consideration for a promise; and it is one which frequently occurs in fact.
If A says to B, “ If you will deliver goods to C, I will pay for them," although there is no obligation upon B to deliver the goods, if he does deliver them, he furnishes a consideration fa the agreement, and may enforce it against A.
An agreement by two or more parties to refer disputes or claims between them to arbitration, is not binding upon any
of the parties unless all have entered into it.
The principle, that a promise is a good consideration for a promise, has been sometimes applied to subscription-papers ; all who sign them being held on the ground that the promise of each is a good consideration for the promises of the rest. The law on the subject of these subscription-papers, and of all vol. untary promises of contribution, is substantially this : no such promises are binding, unless something is paid for them, or unless some party for whose benefit they are made,—and this party may be one or more of the subscribers, -at the request. express or implied, of the promisor, and on the faith of the sub scriptions, incurs actual expense or loss, or enters into valid contracts with other parties which will occasion expense or loss, As the objection to these promises or the doubt about them, comes from the want of consideration, it may be cured by a seal to each name, or by one seal which is declared in the instrument to be the seal of each.
It is to be regretted that the law does not regard a merely moral consideration as a sufficient legal consideration ; but so it is. Thus, it has been held in this country, that a note given by a father to a party who had given needful medicines, food, and shelter to his sick son, who was of full age, was void in law, because there was no legal consideration. And the same doctrine was applied where a son made a similar promise for food and support to his aged father. If, in either case, the promise had been made before the food or other articles were supplied, or even a request made before the supply, then the supply of the food and support would have been a good consideration. But they had all been supplied before any request or promise, and nothing was left but the moral obligation of a father to compensate one who had supported his son, or of a son to support his father; and this the law does not deem sufficient to make even an express promise enforceable at law.
AN ILLEGAL CONSIDERATION.
If the whole of a consideration, or if any part of the con sideration of an entire and indivisible promise, be illegal, the promise founded upon it is void. Thus, where a note was given in part for the compounding of penalties and suppressing of crime inal prosecutions, it was held to be wholly void and uncollecti ble. And where a part of the consideration of a note was spirituous liquors, sold by the payee in violation of a Statute, such note was held to be wholly void. But if the consideration consists of separable parts, and the promise consists of corresponding separable parts, which can be apportioned and applied, part to part, then each illegality will affect only the promise resting on it; for in fact there are many considerations and many promises.
If the consideration be entire and wholly legal, and the promise consists of separable parts, one legal and the other illegal, the promisee can enforce that part which is legal.
AN IMPOSSIBLE CONSIDERATION.
No contract or promise can be enforced by him who knew that the performance of it was wholly impossible ; and therefore a consideration which is obviously and certainly impossible is not sufficient in law to sustain a promise. But if one makes a promise, he cannot always defend himself when sued for nonperformance by showing that performance was impossible ; for it may be his own fault, or his personal misfortune, that he cannot perform it. He had no right to make such a promise, and must answer in damages ; or if he had a right to make it in the expectation of performance, and this has become impossible subsequently,—as by loss of property, for example,—this is his misfortune, and no answer to a suit on the promise. There are, however, obviously, promises or contracts, which, from their very nature, must be construed as if the promisor had said, “I will do so and so, if I can.” For example, if A promises to work for B one year, at $20 a month, and at the end of six months is wholly disabled by sickness, he is not liable to an action by B for breach of his contract; and he can recover his pay for the time that he has spent in B's service. A mere want of money, which makes a pecuniary impossibility, is not regarded by the law as a legal impossibility.
FAILURE OF CONSIDERATION.
IF a promise be made upon a consideration which is apparently valuable and sufficient, but which turns out to be nothing ; or if the consideration was originally good, but becomes wholly valueless before part performance on either side, there is an end of the contract, and the promise cannot be enforced. And if money were paid on such a consideration, it can be recovered back, but only the sum paid can be recovered without any increase or addition as compensation for the plaintiff's loss and disappointment, unless there were fraud or oppression.
If the failure of consideration be partial only, leaving a substantial, though far less valuable, consideration behind, this may still be a sufficient foundation for the promise, if that be entire. The promisor may then be sued on the promise; but he will then be entitled, by deduction, set-off, or in some other proper way, to due allowance or indemnity for whatever loss he may sustain as to the other parts of the bargain, or as to the whole transaction, from the partial failure of the consideration. Thus, if he promised so much money for work done in such a way, or as the price of a thing to be made and sold to him, if no work is done, or the thing is not made or sold, there is an end of the promise, because the consideration has failed. But if the work was done, but not as it should have been, or the thing made and sold, but not what it should have been, and the promisor accepted the work or the thing, he may now show that the consideration for his promise has partially failed, and may have a proportionate reduction in his promise, or in the amount he must pay. And if the promise be itself separable into parts, and a distinct part or proportion of the consideration failed, to which part some
dissinct part or proportion of the promise could be applied, that part of the promise cannot be enforced, although the residue of the promise may be.
If A agrees with B to work for him one year, or any stated time, for so much a month, or so much for the whole time, and, after working a part of the time, leaves B without good cause, it is the ancient and still prevailing rule, that A can recover nothing in any form or way. It has, however, been held in New Hampshire, that A can still recover whatever his services are worth, B having the right to set off or deduct the amount of any damage he may have sustained from A's breach of the con. tract. This view seems just and reasonable, although it has not been supported by adjudication in other States. If A agrees to sell to B five hundred barrels of flour at a certain price, and, after delivering one-half, refuses to deliver any more, B can certainly return that half, and pay A nothing. But if B chooses to retain that half, or if he has so disposed of or lost it that he cannot return it, he must pay what it is worth, deducting all that he loses by the breach of the contract. And this case we think analogous to that of a broken contract of service; but B's liability to pay, even in the case supposed as to goods, has been denied by some courts.
A difficulty sometimes arises where A, at the request of B, undertakes to do something for B, for which he is to be paid a certain price; and in doing it he departs materially from the directions of B and from his own undertaking. What are now the rights of the parties? This question arises most frequently in building contracts, in which there is usually some departure from the original undertaking. The general rules are these: If B assent to the alteration, it is the same thing as if it were a part of the original contract. He may assent expressly, by word or in writing; or constructively, by seeing the work, and approv ing it as it goes on, or being silent; for silence under such circumstances would generally be equivalent to an approval. But if the change be one which B had a right, either from the nature of the change, or the appearance of it, or A's language respecting it, to suppose would add nothing to the cost, then no promise to pay an increased price would be inferred from either