is a breach of warranty or a misrepresentation as to quality, for the purpose of avoiding circuity of action, the law will allow the defendant, in an action between the original parties, or between others standing in no better position, to show such partial failure of consideration in reduction of damages.

In this case, as we have seen, one of the inventions sold by the plaintiff to the defendant, and for which the note was given in part, proved to be void because it was an infringement upon former patents; this fact is a defense pro tanto to the note. Although the case was reported to the law court for its determination, we do not think that the evidence as to the extent of this partial failure, or as to the injury to the defendant by reason of the fact that this invention proved to be void for want of novelty, is sufficiently definite for us to pass upon that question, the trial of the case having apparently proceeded upon the theory that the result depended upon the question as to whether or not partial failure of consideration could be shown in partial defense of the action. We are therefore of the opinion that the case should be remanded to nisi prius for trial upon this question. So ordered.

$121. Failure of Consideration and Absence of Consideration.-Distinguish between failure of consideration and the absence of consideration. In the latter case, there is no contract; in the former, there is a contract, but any action on it is subject to a defense or mitigation of damages. Both of these cases must be distinguished from a bargain that simply turns out to be a bad bargain because of extraneous circumstances. In dealing with these distinctions, the law follows pretty closely the business sense of the community.

In Franklin Telegraph Co. v. Harrison (1892), 145 U. S. 459, HARLAN, J., says:

It is said that the contract turns out to be a hard one for the telegraph company, and that a court of equity should not aid in its enforcement. It is true that in many adjudged cases, and by numerous text-writers, the general rule is laid down that equity in the exercise of a sound judicial discretion will refuse a decree for specific performance where it would be a great hardship upon one of the parties to grant relief of that character. But this general rule is subject, in its application, to some limitations that arise out of the facts of particular cases.

In Cathcart v. Robinson, 5 Pet. 264, 271-which was a

suit to enforce the specific performance of a contract for the sale and purchase of land, in which one of the defences was the excessive price for which the land was sold-Chief Justice Marshall, while conceding that excess of price was an ingredient which, associated with others, will contribute to prevent the interference of a court of equity, said: "The value of real property had fallen. Its future fluctuation was matter of speculation. At any rate, this excess of price over value, if the contract be free from imposition, is not in itself sufficient to prevent a decree for a specific performance."

In Marble Company v. Ripley, 10 Wall. 339, 356, where the decree required the specific performance of a contract to quarry marble, and was objected to upon the ground that, though supposed to be fair and equal when made, the contract became, by lapse of time, and the operation of unforeseen causes, and changed circumstances, unfair, unreasonable and unconscionable, the court, speaking by Mr. Justice Strong, said: "It may be doubted, however, whether the hardship of the contract is any greater than must have been contemplated when it was made. It is not unconscionable because Ripley obtains a larger profit from it than was at first expected, or because the other party obtains less. Those were contingencies, the possibility of which might have been foreseen. It could not have escaped the thought of the contracting parties that the expense of quarrying might possibly increase, and that the expense of sawing and preparing for market might either increase or diminish in the progress of time. Of this they took their chances. Besides, it is by no means clear that a court of equity will refuse to decree the specific performance of a contract, fair when it was made, but which has become a hard one by the force of subsequent circumstances or changing events." These principles, the court said, must be applicable to contracts "that do not look to completed performance within a defined or reasonable time, but contemplate a continuous performance, extending through an indefinite number of years, or perpetually. Fry on Specific Performance,

116, and c. 6.

In Sugden on Vendors it is said that a "court of equity does not affect to weigh the actual value, nor to insist upon an equivalent in contracts, where each party has equal competence. When undue advantage is taken, it will not enforce the contract; but it cannot listen to one party

saying that another man would give him more money or better terms than he agreed to take. It may be an improvident contract; but improvidence or inadequacy do not determine a court of equity against decreeing specific performance, c. 5, §3, par. 25; Sullivan v. Jacob, 1 Molloy, 472, 477. So, in Lee v. Kirby, 104 Mass. 420, 428: "The question of the want of equality and fairness, and of the hardship of the contract, should, as a general rule, be judged of in relation to the time of the contract, and not by subsequent events. We do not intend to say that the court will never pay any attention to hardships produced by a change of circumstances; but certainly the general rule is, that a mere decline in value since the date of the contract is not to be regarded by the court in cases of this nature.” See also Revell v. Hussey, 2 Ball & Beatty, 280, 287; Paine v. Mellor, 6 Ves. 349, 352; Mortimer v. Capper, 2 Bro. Ch. 156.

PRACTICE PROBLEMS

(a) A, desiring to insure a pleasant vacation to B, his favorite nephew, said to him: "I give you my automobile which is now in London. I wish you to use it in making a month's tour of the British Isles and I hereby undertake on your return to pay the entire expense of such a trip from the time you leave your home until you return to it." B said: "I thank you and accept your gift, and shall spend my vacation in the British Isles in the manner you have suggested." B then sailed for England. While on the voyage he received a message by wireless which stated that A had died and that A's executor refused to be liable for the expense of B's vacation trip. When B arrived in London he found that A's executor had cabled orders that the automobile was not to be delivered to him. What are B's rights?

(b) A creditor offered to accept $650 in satisfaction of a liquidated and undisputed debt due him amounting to $1,000. The creditor was willing to do this partly because of the insolvency of the debtor, and partly because he wished to avoid delay and litigation. The debtor paid the $650 and was given a receipt in full. Advise the creditor as to whether he still has a legal claim for the remaining $350. See the discussion of this problem in the article by Professor Williston on Consideration in Bilateral Contracts, 27 Harv. L. Rev. 503, 512-516.

(c) A and B entered into a contract whereby A contracted to remodel a house for B. After beginning work, A encountered substantial difficulties which had not been anticipated by either of the parties. A thereupon refused to continue the work except on B's promise to pay additional compensation. B so promised and A completed the

work. Is B liable to A on his second promise? See the discussion in King v. Duluth, Missabe, etc., Ry. Co. (1895), 61 Minn. 482.

(d) A contractor and a railroad company entered into a contract by which the contractor was to build a branch line for the railroad. After beginning the work the contractor discovered that a rise in the price of labor and materials would prevent him from making a profit by performing the contract. A large landowner who would profit by the performance of the contract, after learning that the contractor is about to give up the construction, is disturbed to learn that by the weight of authority in this country a bilateral agreement between B and C by which B promises to do something which he was previously legally bound to do by contract with A, is not a valid contract. How would you advise him to go about it in order to get for himself a binding promise from the contractor that the latter will complete the construction of the branch line?

(e) A and B entered into a written agreement whereby A was to buy of B, and B to sell to A at a certain price all the iron that A might require in his business during the ensuing year. B subsequently refused to sell to A on these terms at A's request and asserts that the contract is void for want of mutuality. Is his contention Sound? See National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427.

(f) B placed an order with S for certain specified goods. The order blank of S which was used on this occasion contained a printed clause which read, "All orders accepted to be delivered to the best of our ability, but will under no circumstances hold ourselves liable for failure to deliver any portion of orders taken, sometimes caused by circumstances over which we have no control." S sent an acceptance of the order. Subsequently B wrote S that he did not consider that there was a binding contract between them and that he would not live up to the agreement. Has S a good cause of action against B?

(g) A owed $700. B asked A for a payment of $100 on account and promised him in case the payment were made, to wait one year for the balance. Thereupon A paid B $100 and, desiring to show his gratitude for B's promise of forbearance, promised B to pay in installments of $10 per month a debt of $300, which he owed B but which had been barred by the Statute of Limitation. B did not receive any of the promised monthly payments and after waiting six months sued A for the balance of $600 due on the one debt and for the whole amount of the other debt. How much, if anything, can he recover?

Gillingham v. Brown (1901), 178 Mass. 417.

See

(h) A, who was the payee of a promissory note, indorsed the note to B, a holder in due course. B failed to present the note for payment at maturity and was later notified by the maker that he was unable to pay the note. B informed A of these facts, and, by appealing to A's sense of business honor, induced A to write on the back of

the note the words, "Waive demand and notice." Afterwards B found that A was unwilling to pay and accordingly he sued A on the above instrument. Can he recover? See Rindge v. Kimball (1878), 124 Mass. 209.

C. FORMAL REQUISITES OF CERTAIN AGREEMENTS WITHIN THE STATUTE OF FRAUDS

§122. In General.-In most of the business dealings of daily life the observance of formalities is not required in order to make them legally binding. The parties to a bargain may, as a rule, determine for themselves the mode of declaring their intention. Nevertheless, as is known to every experienced person, there are certain transactions in which one's supposed rights are unavailable merely because of a failure to comply with certain prescribed formalities.

As a general rule, requirements as to form owe their origin to legislative interference.' The most notable piece of legislation of this kind is the famous Statute of Frauds," "An Act for the Prevention of Frauds and Perjuries, "-which was enacted by Parliament in 1676.

A discussion of all of the multifarious provisions of this Statute would be beyond the scope of a work like the present. The subsequent comments will be confined to the 4th and the 17th sections of the Statute which relate to certain kinds of agreements, six in number."

The fourth section of the Statute embraces five heterogeneous classes of agreements which are presently to be enumerated, and provides that "no action shall be brought" upon any of these

"The common law, although requiring compliance with a preappointed form for conveyance of land, left parties free to make their agreements in their own way.

In the special case of gratuitous promise the common law requires a writing under seal in order to make the promise binding.

Negotiable instruments have always been required to be in writing and in accordance with certain formal requisites. These requirements originated in the custom of merchants, and are obviously necessary if negotiable paper is to serve as an efficient circulating medium. 229 Car. II., c. 3.

"It should perhaps be mentioned, however, that the Statute also contains provisions with regard to the following transactions: the creation and transfer of estates and interests in land, including leases (except leases for a term not exceeding three years from the making thereof); declarations of trust of interest in lands; and wills.