Lapas attēli

putes, and a compromise is a highly favored consideration.

88. What may be a sufficient consideration.—The waiver or forbearance of a legal or equitable right at the request of the promisor is a sufficient consideration to support his promise. And where there is a meritorious claim made in good faith, forbearance to prosecute it is a sufficient consideration, although a suit based upon it would have failed.

A promise to do something which the promisor is legally bound to do is not a sufficient consideration. Thus, part payment of a liquidated claim, which is due, is no consideration for a promise to forego the balance.

Refraining from using liquor or tobacco for a certain time at another's request is a sufficient consideration to support a promise. But where the circumstances are such as to repel the inference that compensation is intended the law will not imply a promise to pay. Thus, where the circumstances show that the services are performed merely from kindly or charitable motives the law will not imply a promise to pay for them. Naming a child after a certain person at his request upon his promise to pay the parent a certain sum is a sufficient consideration to support his promise.

Where a promise is made based upon a consideration which fails, the promise will not support an action; and money paid on a promise where the consideration fails may be recovered. Thus, where money is paid for property where title is warranted and the title fails, the money paid may be recovered; but where the parties mutually understand that the title is doubtful, the rule is otherwise.

An illegal consideration (such as a violation of morality or of decency) is in contravention of the common law

and will not support a promise. Motive, however, is not the same thing as consideration.

As a rule, a past consideration will not support a promise. There are, however, some exceptions to this rule; a past consideration based upon a previous request, where there is an implied understanding to pay, or one consisting of a voluntary act which the promisor was legally bound to do, or one barred by the statute of limitations, or some other rule of law, will support a promise.

The performance, or promise of performance of an existing contract with a third party will not support another promise. Where the promise undertakes to fulfill the conditions of an outstanding contract with a third party the consideration is unreal.


53. A promises B that he will repair B’s automobile free of charge. Subsequently A refuses to keep his promise. B has no right of action against A because there is no consideration for A's promise.

54. A says to his son, B: "I will give you $1000 if you do not use tobacco until you are of age.' B does not use tobacco during his minority. A is bound by his promise. B suffers a legal detriment which is a sufficient consideration to support A's promise.

55. A, an infant, purchases on credit a diamond ring from B. After reaching his majority, A promises to pay for the ring. A's promise is binding, although he is not liable during his minority.

56. A owes B a debt which is barred by the statute of limitations. A promises B that he will pay the debt. A is liable on his promise, since there is a sufficient consideration to support it. In some jurisdictions this promise must be in writing.

57. A, a ship owner, agrees to carry B from New York to Liverpool in two days for $1000. The contract is void because it is impossible for A to perform it.

58. A, who has a horse which belongs to B, wrongfully refuses to let B have it. B thereupon promises A $10 to let him have his horse and A accepts the offer. B is not legally bound by his promise because the consideration for it is an act which A is legally bound to perform irrespective of B's promise.

59. A, who has been discharged from his debts by a certificate in bankruptcy, promises to pay one of his old debts. The past consideration is sufficient to support A's promise and he is legally bound.

89. The Statute of Frauds.—The English Statute of Frauds was enacted in 1676, towards the end of the reign of Charles II. Similar statutes have been enacted by most of the American states. Their purpose is to prevent fraud and perjury in the proving of contracts. The two sections of the English statute which relate particularly to contracts are the fourth and the seventeenth.

90. Contracts necessarily in writing.—The fourth section provides that the following promises or contracts to be enforcible must be in writing and signed by the party to be charged:

1. Any promise of an executor or administrator to pay out of his own estate any debt due from the estate he is administering.

2. Any promise to answer for the debt, default or miscarriage of another person.

3. Any promise to perform some act, such as to transfer property or pay money, in consideration of marriage.

4. Any contract for the sale of lands, tenements or


hereditaments, or any interest in or concerning them.

5. Any contract which by its terms is not to be performed within the space of one year from the making thereof.

At common law an executor or administrator might sue and be sued as the representative of the deceased. He is not required to pay anything, however, out of his own estate. Should the credit of the deceased's estate become weak and unstable a promise by the executor or administrator to answer damages out of his own estate must be in writing and signed by himself or his agent.

Any promise to answer for the debt, default or miscarriage of another is a promise in the nature of a guaranty or suretyship. There must be a liability of a third party for whom the promisor undertakes to

See section 257.) The agreement made in consideration of marriage is not a promise to marry but a promise to perform some act in consideration of a marriage actually taking place. Promises to marry, although mutual, are not within the statute.

A contract which can be performed within a year is not within the statute; the fact that it is not performed within a year is immaterial. Furthermore, if the part which one of the parties agrees to do can all be done within the year it is not within the statute.

91. What may constitute the writing.—The writing required may be a mere memorandum provided it contain all of the essential terms of the contract. It need not be formal, but may consist of letters, telegrams, bills, etc. The parties and subject-matter, however, must be capable of identification and the papers must be capable of being connected without oral explanation.

The consideration, as well as the other terms, must be expressed in the writing, and the writing must be signed by the party charged or by his agent.

The fourth section of the statute of frauds does not make any contract void or even voidable. It is not the validity of the contract which is affected by the fact that it is not in writing, but rather the remedy.

92. Contracts regarding personal property: under the statute. The seventeenth section relates to the sale of personal property and provides as follows: "No contract for the sale of any goods, wares, or merchandises for the price of ten pounds sterling, or upwards, shall be allowed to be good, except (1) the buyer shall accept part of the goods so sold and actually receive the same, (2) or give something (in New York and Wisconsin, at the time the contract is made) in earnest to bind the bargain or in part payment, (3) or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”

In a majority of the states of the Union this section, in a modified form, has been enacted. It is not in force, however, in some sixteen states, including Illinois. The price or sum varies from any amount, however small, to $200. In six states it is $30, in twenty states and in the District of Columbia $50, and in four states, including California, it is $200. In Iowa and Florida the amount is not limited.

The section is not applicable to contracts for work, labor and materials. In fact the courts do not agree as to what constitutes such a contract. The English courts hold that where the contract contemplates the ultimate transfer of the property in a chattel, although the chattel is to be manufactured, the statute is appli

« iepriekšējāTurpināt »