sideration, is sufficient to uphold an express promise to recompense such voluntary act. This exception is said to be founded upon the rule that a subsequent ratification of a voluntary act amounts to a previous authority." Anson concludes, however, that the authorities usually cited for this rule fail to support it.48 There is considerable doubt as to the foundation for the rule, unless there is a preëxisting quasi-contractual obligation as in the first exception above. The third alleged exception consists in the rule "that where the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law, meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it."49 Illustrations of this exception are the ratification of voidable contracts by an infant upon his attainment of majority,50 the subsequent promise made by a bankrupt discharged from debts, to satisfy those debts,51 and the promise to pay a debt which has been barred by the Statute of Limitations.52 Each of these promises is really a present legal detriment, and a promise to do what one is not bound to do. 80. Subscription agreements.-Agreements of this kind are usually divided into those for chari 47 Gleason v. Dyke, 22 Pick. 390 (Mass.). 48 Anson, Contracts (Huffcut's 2d ed.), § 150. 49 Parke, B., in Earle v. Oliver, 2 Ex. 71 (Eng.). 50 Reed v. Batchelder, 1 Met. 559 (Mass.). See § 95. 51 Lawrence v. Harrington, 122 N. Y. 408. 52 Keener v. Crull, 19 Ill. 189. 53 table purposes and those for business purposes." Cases involving the latter rarely furnish a problem in the law of consideration, for there is usually a valuable consideration moving to the subscriber, and so the agreement is upheld.5* Charitable agreements furnish difficulties in the questions of consideration, and consequently of the enforcibility of the subscription contract. The decisions may be divided into three classes, for there is no uniformity by any means. (a) If, on the faith of the subscription, the work for which the subscription was made has been done, as to secure additional subscriptions; or if liability has been incurred in regard to such work, as actually starting to build a church, there is a sufficient consideration.55 But if no act be done or liability incurred on the faith of the subscription, it may be revoked, and it is revoked by the death of the subscriber.56 (b) Some jurisdictions hold that the promise of each subscriber is supported by the promises of the others.57 Two difficulties arise in this theory: First, as the subscriptions were not all taken at the same time, it is difficult to see how the act of A in signing can be a consideration for B's promise who signs later. Again, the promises are made not to the church, for instance, but to the subscribers. 53 Stovall v. McCutcheon, 107 Ky. 577; Martin v. Meles, 179 Mass. 114. 54 Merchants Imp. Co. v. Exchange Bldg. Co., 210 Ill. 26. 55 Beatty v Western College, 177 Ill. 280. 56 Pratt v. Trustees, 93 Ill. 475. 57 Higbert v. Indiana Ashbury University, 53 Ind. 326; Christian College v. Hendley, 49 Cal. 347. (c) It is held in other jurisdictions that the acceptance of the subscription by the trustees of the charity implies a promise on their part to execute the work contemplated, and this supports the subscription.58 In England, a charitable subscription is not binding. In the presence of a strong moral influence, courts have thus constructed theories of consideration in these cases of subscriptions, which scarcely apply to ordinary contracts. 81. Failure of consideration.-Where the consideration is void only in part, but is entire in character and inseparable, then the whole contract fails. But where the consideration is separable, or where there are several considerations, and one is frivolous or fails, but is not illegal, the contract may stand because of the rest, so long as the remaining considerations are sufficient. If any part of a consideration, whether entire or separate, be illegal, the promise will fail because it is against public policy to enforce a promise obtained by an illegal act. Thus where a promissory note was given in payment of an account, some of whose items were for groceries, and others for liquors sold in violation of the statute, it was held that the note was void entirely.59 In Jamieson v. Renwick,60 A agreed to pay B a certain sum every year, provided B would not reside in the town of S, or visit or annoy A, or claim any 58 Martin v. Meles, 179 Mass. 114. 59 Widoe v. Webb, 20 Ohio St. 431. 60 17 Vict. L. R. 124 (Victoria). interest in A's land. The promise not to annoy is not a consideration, for B has no right to annoy A, but the other promises are considerations, for B gives up his right to live in S and to claim A's land. These considerations will support the contract. If only a part of the consideration fails, and it does not go to the essence of the contract, the partial failure will not avoid the contract. Thus, in Palmer v. Meriden Britannia Co.,61 by the provisions of a lease A was required to do certain building on the land, and was to pay $1000 rent per year for ten years. At the end of the period A was to receive $5000. B refused to pay because the cement furnished was not as specified. The court held that this failure of consideration did not go to the essence of the contract. It could be compensated for by an amount to be deducted from the $5000, but the whole contract could not be avoided by this breach. Some contracts are by their nature and intent not to be avoided by reason of a slight or immaterial variation or failure in the consideration, as in the sale of lands where a definite number of acres are called for, followed by the words "more or less." But if the consideration wholly fails the contract is unenforcible. If A sells B a business for $1000, and he has no business to sell, naturally A may not maintain an action against B. 82. Presumption of consideration.-Bills of exchange, promissory notes and negotiable instruments are by the law merchant deemed to have been issued for a valuable consideration. That is to say, the pre 61 188 Ill. 508. sumption is that there is a consideration, and it is necessary to show that there is none.62 Similarly, some state statutes have provided that all written instruments shall be presumptive evidence of a consideration.63 62 See subject, NEGOTIABLE INSTRUMENTS. |