is a sufficient alternative to the requirement of detriment to the promisee, but also cases which uphold the validity of agreements in which the consideration does not move from the promisee.20 On the whole, it seems better to take the wider rule. A promise made in return for a benefit to the promisor must have been seriously made, and it has been paid for at the price which the promisor requested and he has gained an advantage therefrom. This seems a sufficient reason for enforcing the promise, and the circumstance that the action of assumpsit was historically developed from an action of tort in which the gist of the action was an injury, or detriment to the promisee caused by reliance on the promise, seems an inadequate argument to the contrary. The law of contracts has travelled a long way from this beginning, and there seems no reason if the broader meaning makes for convenience at the present time why the natural meaning of the definition as laid down for centuries should be restricted for historical reasons.21 20 See infra, § 114, also Edmund M. Morgan, 1 Minn. L. Rev. 383. 21 Not infrequently, in cases where legal detriment suffered by the plaintiff in exchange for the defendant's promise might be found, the decision is rested wholly or partly on benefit received by the defendant. Thus in Richmond, etc., Ry. Co. Richmond, etc., Railroad Co., 96 Va. 670, 673, 675, 32 S. E. 787, the court had in question an agreement between two railroads to share the expenses of erecting gates and maintaining a watchman at the crossing of their tracks. The court said: "It is said, however, that this contract is without consideration; that the Electric Company had the right, with or without its consent, to cross its tracks, authority to do so having been conferred by the City of Richmond. This we concede, but we know that the crossing of railways at grade is always attended with danger, and that when this crossing occurs in the streets of a city the danger is greatly enhanced. It was, therefore, for the mutual convenience, safety, and protection of the two companies that some arrangement should be made by which the danger incident to the situation might be diminished, if not wholly obviated. Counsel for the Electric Company says that the erection of gates does not tend to diminish the danger, and was not to the advantage of the Electric Company, because its employees are thereby induced to rely upon such means of protection against accident, and relax their own vigilance, and are rendered less attentive to their duties. We think, however, that we can with propriety assume that it is a matter of common knowledge that the tendency of gates and a gatekeeper is to promote safety. . . . The contract [having thus been entered into and ratified] is, we find, supported by a sufficient consideration in the benefits which it has conferred upon the parties thereto, in the safety and protection § 102a. Technical meaning of benefit and detriment. Benefit and detriment have a technical meaning. Neither the benefit to the promisor nor the detriment to the promisee need be actual. "It would be a detriment to the promisee, in a legal sense, if he, at the request of the promisor and upon the strength of that promise, had performed any act which occasioned him the slightest trouble or inconvenience, and which he was not obliged to perform." 22 Thus abstaining from smoking and drinking, though in fact in the particular case a benefit to the promisee's health, finances and morals and of no benefit to the promisor is a legal detriment and if requested as such is sufficient consideration for a promise.23 So obtaining signatures to a petition is a sufficient consideration though the petition is so defective as to be useless and the signatures are, therefore, of no benefit to the promisor.24 Detriment, therefore, as used in testing the sufficiency of consideration means legal detriment as distinguished from detriment in fact. It means giving up something which the promisee had a right to keep or doing something which her had a right not to do.25 And benefit correspondingly must mean the receiving as the exchange for his promise of something which the promisor was not previously entitled to receive. That the promisor desired it for his own advantage and had no previous right to it is enough to show that it was beneficial.26 If the promisor requested the act not for his own in the operation of their respective roads, which we are authorized to infer is in some measure due to the flagman employed, and gates erected in accordance with its terms." 22 Bigelow v. Bigelow, 95 Me. 17, 22, 49 Atl. 49. 23 Hamer v. Sidway, 124 N. Y. 538, 27 N. E. 256, 12 L. R. A. 463, 21 Am. St. Rep. 693; Talbot v. Stemmons Ex'r, 89 Ky. 222, 12 S. W. 297, 25 Am. St. Rep. 531. 24 Corey v. Newton, 9 Col. App. 181, 48 Pac. 156. 25 This might not, however, be pushed to its ultimate logical extremity. Receiving a gift would probably not be held sufficient consideration to support a promise by the donor to make another. Hoffman v. Moreman, 184 Ala. 220, 63 So. 942; and see infra, § 103d. n. Sed quære, if the parties really intended a bargain. 26 Proof that the test is based on the previous legal right of the promisee to keep the consideration and of the promisor to receive it may be found in decisions holding payment of a debt, whether in fact advantageous to one party and detrimental to the other, no valid consideration for a promise, infra, § 120; and likewise performance of duties imposed by contract, infra, § 131, or by law, infra, § 132, invalid advantage, but from a charitable desire to benefit a third. person, it may be doubted whether there is such a benefit as the law requires. Thus if, as consideration of his promise, A requests B to perform a legal duty which B owes to C, and B does so, it is insufficient consideration unless A requested. the act for his own advantage, not C's.27 The fact that performance of his own promise will benefit the promisor is im material. A promisor cannot give himself consideration for his own promise.28 It is probable also that no performance can serve as con as consideration. "If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he has already bound for, there is no consideration." Feldman v. Fox, 112 Ark. 223, 164 S. W. 766, 767. The principle stated in the text is not infrequently lost sight of, and an inquiry made whether an act was detrimental in fact to the promisee or beneficial in fact to the promisor. See, e. g., Brown v. Brew, 99 Wash. 560, 169 Pac. 992. In the cases cited, infra, § 131, which hold performance or promises of performance of a legal duty to a third person a sufficient consideration, there are expressions indicating that in the opinion of the court sometimes performance by B at A's request of B's legal duty to C, might be beneficial to A, and sometimes might not be. 28 The error of such reasoning (for it can be considered nothing else) was committed in Union Bank v. Sullivan, 214 N. Y. 332, 108 N. E. 558. There the President and members of the Executive Committee of the bank gave their note to the bank for $175,000, in order that a loss of that amount which the bank had suffered might not be deducted from the apparent surplus in the bank's statement of its condition. The court said in support of its argument that the signers of the note had received sufficient consideration for their respective promises: “Certainly those who became liable on the note secured a distinct benefit which accrued directly from the contract. Each share of stock which they held represented an aliquot part of the bank's assets and whatever increased the assets benefited the holders of the stock." It might be argued with equal force that a promise to buy property is binding without any promise to sell it, since if the promise is performed, the promisor will receive the benefit of the purchased property. A promise by a stockholder to make a present to a corporation is surely not binding, merely because a fraction of the gift will enure to his advantage in the increased value of his stock. The true analysis of the situation presented by the New York case is this: Mutual promises by A and B that each will make a gift to C, are binding. This is an ordinary case of a bilateral contract for the benefit of a third person. In the actual case the promises in question were not made by the promisors to one another but were made to the bank. In consideration of A's promise to the bank, B also promised to the bank. It is therefore a case where the consideration does not move from the promisee (see infra, § 114), but where in other respects the usual requirements for the formation of contracts may be found. sideration if the promisee had no power to refrain from performing the act. This question can generally arise only where negative performance is requested. If the promisee refrains as requested, but could not, had he wished, have done otherwise, he has certainly incurred no detriment and can hardly be regarded as having conferred a benefit. 29 § 103. Application to bilateral contracts of the definition of consideration in unilateral contracts. The earliest simple contracts recognized by the law were unilateral. The first recognition of bilateral contracts seems to have been about the end of the sixteenth century.30 When endeavoring to apply the doctrine of consideration to bilateral contracts a lawyer instinctively seeks to apply the same definition that has been adopted for unilateral contracts. Let it be supposed that this is detriment to the promisee or perhaps, as an alternative, benefit to the promisor. Such detriment or benefit may be sought in bilateral agreements either in the making of a promise in fact, or in the obligation > in law created by a promise. Professor Ames took the former alternative; 31 Sir Frederick Pollock,32 though saying, "It is true that the promise itself, not the obligation thereby created is the consideration," has inserted in the last edition of his treatise a passage which seems inconsistently to imply that not the promise in fact, but the obligation of the promise is requested; 33 and at all events is explicit that whether or 29 In Wichita Mill & Elevator Co. v. Liberal Elevator Co., 243 Fed. 99, 102, 155 C. C. A. 629, the court held that a seller's delay in shipping goods, though requested as consideration, created no contract, "for such delay was caused by its absolute inability to ship and not by its compliance with the buyer's request." 30 Strangborough v. Warner, 4 Leonard, 3 (1589); Gower v. Capper, Cro. Eliz. 543 (1597); Nichols v. Raynbred, Hob. 88 (1615). In Pecke v. Redman, Dyer, 113 (1555), the parties had entered into a bilateral agreement for the sale of grain in installments. The defendant failed to pay for installments furnished, and the judges were evenly divided in opinion as to the plaintiff's right to recover for future profit as well as for the non-payment for what had already been delivered. 31 12 Harv. L. Rev. 29, 32. 32 Principles of Contract, 8th Eng. ed., 192, 3d Am. ed., 202. 33 "If it be suggested that the mere utterance of words of promise is trouble enough to be a consideration, the answer is that such is not the nature of the business. Moving of the lips to speak or of the fingers to write is not what the promisor offers or the promisee ac not the making of the promise as a fact or the obligation of the promise in law is requested, the reason that a promise is sufficient consideration is because it creates a detrimental obligation. Professor Langdell also 34 is explicit only to the same extent. He says that the making of a "binding promise" is something of value; and in his argument,35 applies his test for consideration-detriment to the promisee--to the obligation assumed to be created by the promise.36 It seems probable that generally speaking, it is the promise in fact which the offeror requests not a legal obligation. This is shown, as Professor Ames has said, by the form which such an offer ordinarily takes in fact, and by the form in which a bilateral contract is declared upon, the plaintiff stating merely that in consideration of his promise, the defendant promised. An offeror contemplating the formation of a bilateral contract says nothing of obligations, and asks only a promise in fact. Whether the offeror has bound himself by an obligation and whether he has got one in return is for the law to decide. This is true generally in the formation of contracts.37 If it were true that the request of the offeror were for an obligation rather than for a promise in fact, no fair construction of the offer could permit any other conclusion than that the obligation requested by the offeror was an effective and enforceable obligation, not one unenforceable or voidable at the option of the promisor. Yet, promises which are voidable or unenforceable on account of fraud, infancy, the Statute of Frauds, or illegality, are sufficient to support counter-promises.38 If the counter-promisor in such a bargain requested a legal obligation, it can hardly be true that he has received what he asked for. Certainly no offeror who in terms requested an obligation could have had in mind such a feeble bond. cepts." Pollock (8th Eng. ed.), 191. No doubt even if merely a promise in fact is asked for, the request contemplates, not the utterance of the words as a meaningless formula, but as a manifestation of the speaker's intent. Possibly this is all the learned author means. 34 Summary of Contracts, § 81. 35 E. g., Summary of Contracts, § 84. 36 Professor Ashley, who follows Langdell closely, argues that "in the average case" it is the obligation not merely the promise in fact which the offer for a bilateral contract requests. Law of Contracts, § 31. 37 See supra, § 21. 7 |