consider at the time of making the agreement, not for the court when it is sought to be enforced."

This rule that the courts will not inquire into the adequacy of the consideration, is based on their inability to determine what value the parties may have attached to the thing given or promised. But where the promise is of one certain sum of money, in consideration of a promise of another sum of money, the rule does not apply. Thus, in an Indiana case,10 a promise to pay one cent was held an inadequate consideration for the other party's promise to pay $600. The court said:

"It is true that, as a general proposition inadequacy of consideration will not vitiate an agreement. But this doctrine does not apply to a mere exchange of sums of money, of coin, whose value is exactly fixed, but to the exchange of something of, in itself, indeterminate value, for money, or perhaps for some other thing of indeterminate value. In this case, had the one cent mentioned been some particular one cent, a family piece, or ancient, remarkable coin, possessing an indeterminate value, extrinsic from its simple money value, a different view might be taken. As it is, the mere promise to pay six hundred dollars for one cent, is an unconscionable contract, void at first blush, upon its face, if it be regarded as an earnest one. The consideration of one cent is plainly, in this case, merely nominal, and intended to be so."

Courts of equity will consider gross inadequacy of consideration as corroborative evidence of fraud or undue influence in suits to set aside contracts on those grounds, but the inadequacy must be sufficient to affect the conscience.

§ 27. Mutual Promises. Mutual promises have already been classified as bilateral contracts, as distinguished from unilateral contracts, in which there is an act on one side in consideration for a promise on the other side. It is well settled that a promise is a sufficient consideration for a counter promise made in respect to the previous promise. But in order that a promise may be a sufficient considera

• Blackburn, J., in Bolton v. Madden, (1873) L. R. 9 Q. B. 55. 10 Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453.

tion, the following things are essential: It must be certain, legal, possible of performance, concurrent in time with the other, and impose a legal liability on the promisor.

A promise may be so vague as to be practically impossible of enforcement. Such a promise is not a sufficient consideration. Thus, a son's promise to cease making complaints to his father was held to be too indefinite to be a consideration for the father's promise to release a debt of the son to the father, since it was merely "an agreement by a father in consideration that his son will not bore him.''11

A promise to do something illegal is not a sufficient consideration.12 Courts will hold a consideration unreal and, therefore, no consideration at all, where it is legally or physically impossible on its face. Impossibility, in this connection, means merely a prima facie legal impossibility or physical impossibility "according to the state of knowledge of the day." Thus, where one, not the creditor, promised the debtor to discharge the debt at a certain time, it was held that this was not a consideration, for it is prima facie legally impossible for one person to release a debt owed to another. So a promise to jump over the moon or to fly from New York to London in one hour would not be a consideration, because of its prima facie physical impossibility. But if the promise be within the range of possibility, even though absurd or highly improbable, it will support a consideration.14

The promises will not constitute a consideration for each other, unless they are concurrent, that is, become obligatory at the same time. Otherwise each would be without consideration to support it at the time it was made. It is likewise necessary that the promise impose a legal liability on the promisor. Thus, at common law, the promise of a married woman was void and, therefore, could not constitute a legal consideration. On the other hand, an infant's promise is

11 White v. Bluett, (1853) 23 L. J. Exch. 36.

12 See Chapter VI.

13 Clifford v. Watts, (1870) L. R. 5 C. P. 577, 588, 40 L. J. C. P. 36. 14 Beebe v. Johnson, 19 Wend. (N. Y.) 500, 32 Am. Dec. 518.

merely voidable, and this defect does not prevent its being a sufficient consideration. In the same manner, a promise which is unenforcible, but not void, because of failure to comply with the Statute of Frauds, may be a sufficient consideration.

Mutuality Essential. Unless both parties have made binding promises which constitute a legal consideration each for the other, there is no contract for want of mutuality. Both parties must be bound or neither is bound. Thus, if a wholesale dealer should offer to supply at a certain price such goods as a certain retailer may order, and the retailer promises to pay at that price for such goods as he may order, there is no contract, because there is no promise of the retailer to order any goods. But if the retailer accepts an offer to sell him all the goods he may require during a certain time, he is bound to purchase his goods of that wholesale dealer, if he requires any. He has parted with his right to buy them elsewhere, and his liability is merely contingent upon requiring such goods. An acceptance of an offer to sell all the pig iron of a certain quality which it would need, use, or consume in its business during the coming year, has been held to create a valid contract.15 The court said:

"It cannot be said that appellee was not bound by the contract. It had no right to purchase iron elsewhere for use in its business. If it had done so, appellant might have maintained an action for a breach of the contract. It was bound by the contract to take of appellant, at the price named, its entire supply of iron for the year, that is, such a quantity of iron, in view of the situation and business of appellee, as was reasonably required and necessary in its manufacturing business."

§ 28. Subscriptions. The validity of voluntary subscriptions to public enterprises has been generally sustained, but on various grounds. Thus, where each of several persons voluntarily promises to pay a certain sum of money to build a church, some courts have taken the 15 National Furnace Co. v. Keystone Co., 110 Ill. 427.

view that each promise was in consideration of the promises of the others. An objection to this view is that it is not true in fact, and the promises are not concurrently binding. Another view is that an implied promise of the beneficiary of the subscription to apply the funds in conformity with the terms of the subscription, is the consideration. The most generally approved view is that the subscriber is only bound where the one to whom the subscription is made has incurred some obligation or expended money or labor in reliance upon the subscription, and that until that time the subscription is revocable.16

Mutuality is sometimes implied where such is the clear intention of the parties even though not expressly so stated. Thus, where the written memorandum of the agreement between the parties read: "Sold for Messrs. Butler & Co. to Messrs. Thomson & Co." a certain quantity of iron, it was objected that there was no contract because Thomson & Co. had not agreed to buy the iron. The Supreme Court of the United States in deciding the case, said:

"There can be no sale unless there is a purchase, as there can be no purchase unless there is a sale. When, therefore, the parties mutually certify and declare in writing that Butler & Co. have sold a certain amount of iron to Thomson & Co. at a price named, there is included therein a certificate and declaration that Thomson & Co. have bought the iron at that price."'17

§ 29. Promise to Do What One Is Already Bound to Do. If the promisor gets nothing more in return for his promise than he was already legally entitled to, the consideration is unreal. This may be because of a legal non-contractual duty of the promisor to do what he has promised or because he has already contracted to do it. Thus, a public officer cannot recover on a promise to pay him additional compensation in consideration of doing only what his public duties include.18 Nor can a witness recover on a promise

16 College Street Church v. Kendall, 121 Mass. 528, 23 Am. Rep. 286. 17 Butler v. Thomson, 92 U. S. 412.

18 Smith v. Whildin, 10 Pa. St. 39.

to pay him more than his statutory fees. In the same way a promise to fulfill an existing contractual obligation is no consideration. Thus, where an architect who had contracted to supervise the erection of a brewery, refused to proceed and took away his men and plans, it was held that a promise of an additional commission on another portion of the work, was void for want of consideration.19 The court states its reasons as follows:

"When a party merely does what he has already obligated himself to do, he cannot demand an additional compensation therefor, and although by taking advantage of the necessities of his adversary he obtains a promise for more, the law will regard it as nudum pactum, and will not lend its process to aid in the wrong."

But the consideration is real and sufficient if the promisee does or promises more than it was his legal or contractual duty to perform. Thus, a promise to pay a jailor for extraordinary care and attention to a sick prisoner, beyond the legal duty of the jailor, has been held binding, and also a contract arising from a fireman's acceptance by performance, of an offer to "give $5,000 to any person who will bring the body of my wife out of that building, dead or alive. ''20

A promise of extra reward to a sailor to induce him to remain with an unseaworthy vessel has been held binding, because his original promise was by presumption only to navigate a seaworthy ship.21

Part Payment in Satisfaction of Debt. The mere payment of a smaller sum in attempted satisfaction of a larger sum is not a valid discharge of the debt. The debtor is merely doing what he was legally bound to do, and there is no consideration for the creditor's promise to release the balance of the debt.22 Thus, a promise of A to accept $50 in full satisfaction of B's debt of $100 will not prevent his 19 Lingenfelder v. Wainwright Brewery Co., 103 Mo. 578, 15 S. W. 844. 20 Reif v. Paige, 55 Wis. 496, 13 N. W. 473, 42 Am. Rep. 731.

21 Turner v. Owen, 3 F. & F. 176.

22 Jaffray v. Davis, 124 N. Y. 164, 26 N. E. 351, 11 L. R. A. 710.