No. 624.

Book 2, part 2, tit. 4, chap. 2, sec. 4, § 6, 7, 8.

No. 626.

mer are not a sufficient consideration to support a contract, but the latter will be sufficient. (a)

§ 6-Of an immoral consideration.

624. An immoral consideration is one contrary to good morals, and is therefore invalid. It is not sufficient to support a contract; as if a man were to give his obligation to a woman upon condition she would live with him in adultery, the obligee could not recover.(b)

§ 7. Of an executed consideration.

625. An executed consideration is one that is past; as, for example, where the defendant gave the plaintiff a writing as follows: "In consideration of your having endorsed the following mentioned notes, drawn by A in your favor, we do hereby hold ourselves accountable to you for them, in the same manner as though said notes were drawn by us."(c) A past or executed consideration, is, in general, insufficient to support a contract, (d) but a promise to pay a sum of money on a consideration executed, if it was induced by the request of the defendant, or for some previous duty, or if the debt be continuing at the time, or it is barred by some rule of law, or some provision of a statute, as the act of limitations, is sufficient to maintain an action.(e)

§ 8. Of an executory consideration.

626. An executory consideration, is one which is to

(a) Lonsdale v. Brown, 4 Wash. C. C. 86; S. C. 4 Wash. C. C. 148; Wiling v. Peters, 12 S. & R. 177; Scouton v. Eislord, 7 John. 36; Maxim v. Morse, 8 Mass. 127.

(b) 3 Burr, 1568.

(c) Bulkley v. Landon, 2 Conn. 404.

(d) Comstock v. Smith, 7 John. 87; Livingston v. Rogers, 1 Caines, 584; Chaffee v. Thomas, 7 Cowen, 358.

(e) Lonsdale v. Brown, 4 Wash. C. C. 148; Bell v. Morrison, 1 Pet. 373; Cook v. Bradley, 7 Conn. 57; Levy v. Cadet, 17 S. & R. 126; Searight v. Craighead, 1 Pennsyl. 135; Mills v. Wyman, 3 Pick. 207; Carson v. Clark, 1 Scam. 113.

No. 627.

Book 2, part 2, tit. 4, chap. 2, sec. 4, § 9, 10, 11.

No. 629.

be performed; as if a man promise to pay another one hundred dollars, at a future time, for a horse. Executory considerations, when the subject of them is not unlawful, are always sufficient.

§ 9. Of concurrent considerations.

627. A concurrent consideration is one which is given by one party, at the same time that another is given to him; such considerations are mutual and binding; as mutual promises between a man and a woman, both capable of marrying, that they will marry each other.(a) In general the promises must be reciprocally binding, but the promise of an infant to marry another is sufficient. (b)

§ 10. Of continuing considerations.

628. A continuing consideration is one which in point of time remains good and binding, although it may have served before to support a contract; as in consideration that the defendant had become, and was, the plaintiff's tenant, he undertook to manage the farm in a husband-like manner.(c) Such a consideration is in many cases sufficient to support a promise.

§ 11. Of divisible and indivisible considerations.

629. When a consideration consists of one entire thing, it is said to be entire or indivisible; when of several things, it is divisible.

It is a general rule, that when the consideration consists of several distinct matters, each having a fixed value, and some of such matters are illegal, the contract is void pro tanto, but it is supported by what is lawful.(d) But if the entire consideration of a contract is against law, the contract is void in toto.(e)

(a) Willard v. Stone, 7 Cowen, 22; Babcock v. Wilson, 5 Shepl. 372; Whitehead v. Potter, 4 Ired. 257; Boyd v. Fox, 8 Misso. 574.

(b) 7 Cowen, 22.

(c) 1 Saund. 320, e. note (5).

(d) Frazier v. Thompson, 2 W. & S. 235.

(e) Woodruff v. Hinman, 11 Verm. 592; 2 W. & S. 235.

No. 630.

Book 2, part 2, tit. 4, chap. 3.

§ 12.-Of the failure of the consideration.

No. 633.

630. Few men enter into a contract without a consideration, but sometimes the consideration is only apparent and not real. It may be, first, that the cause or motive which induced me to enter into an engagement, may never have existed, or ceased to exist at the time of making the contract; secondly, the consideration which induced me to contract, and which existed only in hope, may have failed; it is evident then that my engagement was made without consideration.

631.-1. As an example of the first kind, may be mentioned the case where a man who is heir at law of another, finding a will made by the latter by which he bequeathed a thousand dollars to a third person, gives his obligation to such third person for that sum, and, afterward discovers a codicil by which the legacy is revoked, the obligor will not be bound to pay his obligation, because the consideration has wholly failed; for where one through a mistake acknowledges himself under an obligation, which the law does not impose upon him, he is not bound by it.(a)

632.-2. An agreement to pay a sum of money for a tract of land, when in fact the land was the obligor's already, is an example of the second class; another example may be mentioned of a man who agreed to purchase another's obligation, and it was afterward discovered such obligation was forged. A total failure of consideration and a want of consideration is the same thing.

CHAPTER III.-OF THE EFFECT OF CONTRACTS.

633. The immediate effect of a contract is to produce a right in favor of one of the contracting

(a) See Warder v. Tucker, 7 Mass. 449; May v. Coffin, 4 Mass. 347; McDonald . Neilson, 2 Cowen, 139. Freeman v. Baynton, 7 Mass. 483; Poth. Ob. part 1, c. 1, a. 3, § 8; Addis. on Contr. 25.

No. 634.

Book 2, part 2, tit. 4, chap. 3, sec. 1.

No. 634

parties, and to impose a corresponding obligation or duty upon the other. These rights and duties vary in infinitum; they depend upon the nature and the object of the contract, and on the clauses and conditions which the parties have agreed upon. But still there are numerous effects which are common to all contracts, whatever may be their nature, or whatever clauses may have been agreed upon; these will be considered in the first section. In the second and third, the effects common to certain kinds of agreements will be examined; as the agreement to deliver and the obligation to do or not to do a particular thing. The question of damages will form the subject of the fourth section. The fifth will treat of the construction of agreements; and the sixth of agreements as affecting third persons.

SECTION 1.-OF GENERAL RULES AS TO THE EFFECT OF CONTRACTS.

634. The first and the principal effect of all contracts is to confer on each of the contracting parties the reciprocal right to constrain the other to execute them, to bind the parties and to oblige them as firmly as the law would have done. The law sanctions agreements, it lends them its aid when made conformably to its requirements, and raises them to the dignity of laws between the parties. But although they are laws, they are but private laws, always within the power of the contracting parties, and they may be revoked, changed or modified at their pleasure, while they do not affect the rights of third persons. When the contract confers a right of that kind on a stranger, it cannot be changed by the contracting parties; for example, where a trust is created for the benefit of a third person, unknown to him, he may subsequently enforce it. (a)

(a) Berley v. Taylor, 5 Hill, 577.

No. 635.

Book 2, part 2, tit. 4, chap. 3, sec. 1.

No. 637.

635. Another effect of a contract is, that all matters of equity and of usage are to be taken as a part of the contract, according to its nature. In considering the nature or substance of a contract, three things may be distinguished: 1, what is of its essence and substance; 2, what belongs to its nature; 3, what is accidental to it.

636.-1. Things which form the essence of the contract are those without which it cannot subsist, a want of one of which renders the contract null, or changes it to another contract; for example, it is of the essence of a sale that there be a thing which is the subject matter of the contract, a price in money, and the consent of the parties as to the thing and as to the price: res, prætium, et consensus. If one of these three is wanting, it is evident that there is no contract, or that the agreement is not a sale.

1st. There is no contract if the consent has been given in mistake or obtained by fraud, because then there is no agreement.

2dly. There is no contract if the thing contracted for was not in existence; as if I buy your house, and, at the time, it had been destroyed by fire; or your horse, and, at the time, he was dead.

3dly. There is no consideration if I sell you a clock, which I received from my father as a legacy, for the price my father gave for it, and it turns out that my father had received it from his uncle as a gift.

4thly. There is no price if I sell you a piece of personal property for another which you sell to me; in that case there is no contract of sale, because it is of the essence of that contract that there should be a price paid in money; the contract is an exchange or barter. In the first three cases there is no contract whatever, and in the last a different one.

637.-2. The things which form the nature of the contract, are those which, without being of its essence, are nevertheless a part of it, although the contracting parties have not said any thing about them; these are