signed was not liable without new consideration; 22 unless it was part of the agreement, made when the original consideration was given, that he should so sign. Another possible distinction from ordinary simple contracts should be observed. Whatever may be the rule in regard to such contracts as to the person from whom consideration must move, there is no doubt that an obligation upon a negotiable instrument may be supported by consideration received by the obligor from some one other than the obligee,23 as well as by consideration furnished to some one other than the obligor.24 It has sometimes been supposed that the modern doctrine concerning the requirement of consideration for negotiable paper between immediate parties is an innovation and that formerly a bill or note, like a covenant under seal, needed no consideration even between immediate parties. 25 It is clear, however, though the question may not have arisen with sufficient frequency before the nineteenth century to establish the law beyond dispute, the modern rule of law is no novelty. It was stated in 1722, in words that might be repeated to-day.26 22 Savage v. First Nat. Bank, 112 Ala. 508, 20 So. 398; Tenney v. Prince, 4 Pick. 385, 16 Am. Dec. 347; West Coast Co. v. Bradley, 111 Minn. 343, 127 N. W. 6; Howard v. Jones, 13 Mo. App. 596; Bank of Carrollton v. Latting, 37 Okla. 8, 130 Pac. 144, 44 L. R. A. (N. S.) 481; Ryan v. McKerral, 15 Ont. Rep. 460. See also Crofts v. Beale, 11 C. B. 172. 23 See infra, § 114. 24 Bridges v. Vann, 88 Kan. 98, 127 Pac. 604; Seager v. Drayton, 217 Mass. 571, 105 N. E. 461. This is true of ordinary simple contracts as well as negotiable instruments. Underwood v. Lovelace, 61 Ala. 155; Mulcrone v. American Lumber Co., 55 Mich. 622, 22 N. W. 67. See infra, § 113. 25 Blackstone makes a statement in 2 Comm. 446, which is hard to interpret as having any other meaning, and largely on the strength of this Professor Ames believed that the requirement of consideration was a modern in novation. 2 Cas. Bills and Notes, 876. 26 Brown v. Marsh, Gilbert's Eq. Rep. 154, two judges there were of the opinion that the consideration of a note "was not enquirable no more than the consideration of a bond." "The other two Judges thought there was a great Difference between a Note and a Bond, notwithstanding the Statute [of Anne which declared promissory notes negotiable like bills of exchange]; for in the Case of a Bond, where there were Solemnities of contracting, viz. the Sealing and Delivery, if there was no Consideration, yet if there was no Fraud in obtaining the Bond, the Money was a Gift in Law to the Obligee; but the Note was no more than a Simple Contract, and notwithstanding the Statute says, that the Money shall be due and payable by Virtue of the Note, that only makes the Note itself Evidence of the Consideration, which it was not before the Statute." The § 109. Agreements under seal need no consideration. At Common Law a sealed promise or covenant was binding by its own force.27 It is often said that such instruments are "presumed" to have consideration, or "import" consideration. This mode of statement, though antedating Lord Coke's time, 28 is absurd historically, since sealed instruments were binding centuries before the development of simple contracts and the law of consideration.29 Such expressions have led to confusion by inducing the supposition that a seal was but presumptive evidence of consideration and that other evidence might be admitted to show that no consideration in fact existed; 30 whereas a sealed promise to make a gift for no consideration whatever is binding.31 The changes facts of the case it is true presented a question of failure, not lack of, considderation, but the comparison with a bond indicates that the judges were not confining their observations to a case of failure as distinguished from lack of consideration. The reporter's note (page 155) makes this more evident. The reporter says in support of the argument that the defence was good: "If not, A. might recover against B., where there was no debt; and certainly the Statute did not design that a Man should recover, where there was no Debt at all; for the Statute only makes Promissory Notes, as Bills of Exchange; and though the Acceptor and Indorser were bound to pay those Bills, whether they had received any Consideration or not, because the Acceptor accepts it for the Honour of the Drawer, and the Indorsor negotiates it; yet the Drawer of the Bill was not obliged to pay it to the Person, in whose Behalf the Bill was drawn, unless he had paid him a Consideration; but the owning a Value received, was Evidence prima facie, that a Consideration was paid to the Drawer of the Bill." 27 See infra, § 217. 28 In Sharington v. Strotton, 1 Plow. *298, *309, Bromley, arguendo said: "Every deed imports in itself a consideration, viz: the will of him who made it, and therefore where the agreement is by deed it shall never be called a nudum pactum." and see infra, § 217. 29 In an anonymous case, Bellewe, 111 (1385), it was said: "In debt on contract the plaintiff shall show in his count for what cause the defendant became the debtor. Otherwise in debt on obligation, for the obligation is contract in itself." Also reported in Belewe, 32; Fitz. Ab. Annuitie, pl. 54. 30 This is best shown in the statutes referred to, infra, § 218. 31 In Krell v. Codman, 154 Mass. 454, 28 N. E. 578, 14 L. R. A. 860, 26 Am. St. Rep. 260, a voluntary covenant to pay the plaintiffs twenty-five hundred pounds, six months from the covenantor's death, was enforced. Such a covenant creates an immediate indebtedness which could be proved in bankruptcy against the covenantor if he had become bankrupt before his death. Ex parte Tindal, 8 Bing. 402. Other cases where sealed covenants have been held binding without consideration are-Sivell v. Hogan, 119 Ga. 167, 46 S. E. 67; Adams v. Peabody Coal Co., 230 Ill. 469, 82 N. E. 645; Flet that have been made by statute in the nature and effect of sealed instruments are elsewhere considered. 32 Courts of equity though they recognize the validity of a contract under seal without consideration, generally deny relief to a mere volunteer; 33 but make some exceptions to their denial.34 110. Good consideration and valuable consideration. Consideration not infrequently becomes important in executed transfers of property, especially in the law of fraudulent conveyances; and in such transfers courts of equity have recognized as a vital element in sustaining a contested conveyance, not only a valuable consideration, but also what has been called a good or meritorious consideration; that is, affection based on kindred by blood or marriage. Such reasoning has no place in the law of executory contracts. What is described as good or meritorious consideration will not support a promise. It is in fact nothing more than motive or moral obligation.35 Marriage is regarded by the law as a valuable consideration and marriage or promise of marriage is sufficient consideration for a promise.36 cher v. Fletcher, 191 Mass. 211, 77 N. E. 758; McMillan v. Ames, 33 Minn. 257, 22 N. W. 612; Hale v. Dressen, 73 Minn. 277, 76 N. W. 31; Aller v. Aller, 40 N. J. L. 446; Waln v. Waln, 58 N. J. L. 640, 34 Atl. 1068; Wester v. Bailey, 118 N. C. 193, 24 S. E. 9; Miles v. Hemenway, 59 Ore. 318, 117 Pac. 273; Evans v. Dravo, 24 Pa. 62, 62 Am. Dec. 359; Clymer v. Groff, 220 Pa. 580, 69 Atl. 1119; Monro v. National Surety Co., 47 Wash. 488, 92 Pac. 280; Walterman v. Village of Norwalk, 145 Wis. 663, 130 N. W. 479. 32 See infra, § 218. 33 See infra, § 217, ad fin. 34 See Pound, "Consideration in Equity," 13 Ill. L. Rev. 435. 35 See infra, §§ 147-149. In Conover's Adm'r v. Brown's Ex'rs, 49 N. J. Eq. 156, 23 Atl. 507, the court sustained a promissory note given to a daughter without valuable considera- 38 The commonest illustration of this is found in mutual promises to marry which have always been held to constitute a good contract, since the case of Harrison v. Cage, 5 Mod. 411. The question most commonly arises, not in the law of contracts, but in the law of conveyances fraudulent as against creditors; and here it is held also that marriage is a valuable consideration, and a reasonable marriage settlement made or promised in writing (to comply with the Statute of Frauds) can not be attacked by the settlor's creditors.37 But whether the question concerns an executory contract or a conveyance, the marriage or promise of marriage must have been contemporaneous or subsequent to the promise or conveyance for which consideration is sought and must have been given as consideration. A previous marriage is of no more validity than any other past consideration.38 § 111. Consideration distinguished from motive. Though desire to obtain the consideration for a promise may be and ordinarily is, the motive inducing the promisor to enter into a contract, yet this is not essential nor, on the other hand, can any motive serve in itself as consideration.39 Thus, A may be moved by friendship to agree to sell his horse to B for one hundred dollars. If there is an actual agreement to make the exchange of the horse for money, there will be a contract though A's motive for entering into the transaction was friendship.40 On the other hand, if there be no legal consideration, no motive, such as love and respect, or affection Other illustrations are of promises made by a third party to either the prospective husband or wife of property in consideration of the marriage. Shadwell v. Shadwell, 9 C. B. (N. S.) 159; Skeete v. Silberberg, 11 T. L. Rep. 491; Wright v. Wright, 114 Iowa, 748, 87 N. W. 709, 55 L. R. A. 261; Arnold v. Estis, 92 N. C. 162; Leib v. Dobriner, 111 N. Y. Supp. 650, 60 N. Y. Misc. 866. 37 See Peachey on Marriage Settlements, 62; Prewit v. Wilson, 103 U. S. 22, 26 L. Ed. 360; Nance v. Nance, 84 Ala. 375, 4 So. 699; Cohen v. Knox, 90 Cal. 266, 27 Pac. 215, 13 L. R. A. 711; Tolman v. Ward, 86 Me. 303, 29 Atl. 1081, 41 Am. St. Rep. 556; Smith v. Allen, 5 Allen, 454, 81 Am. Dec. 758; J. P. Leininger Lumber Co. v. Dewey, 86 Neb. 659, 126 N. W. 87; De Hierapolis v. Reilly, 168 N. Y. 585, 60 N. E. 1110; Clay v. Walter, 79 Va. 92. Cf. Miles v. Monroe, 96 Ark. 531, 132 S. W. 643. 38 Re Holland, [1902] 2 Ch. 360; Deshon v. Wood, 148 Mass. 132, 19 N. E. 1, 1 L. R. A. 518; Borst v. Corey, 15 N. Y. 505. See also Moore v. Green, 145 Fed. 472, 76 C. C. A. 242. 39 "Motive is not the same thing with consideration." Thomas v. Thomas, 2 Q. B. 851. See also Philpot v. Gruninger, 14 Wall. 570, 20 L. Ed. 743. 40 See Puterbaugh v. Puterbaugh, 131 Ind. 288, 30 N. E. 519, 15 L. R. A. 341. for another 41 or a desire to do justice, 42 or fear of trouble, 43 or a desire to equalize the shares in an estate,44 or to provide for a child, 44 or regret for having advised an unfortunate investment, 446 will support a promise. This is a distinction between the consideration of the Common Law and the causa of the Roman Law. Consideration is a present exchange for a promise. Causa is some adequate reason for making a promise, and may be either a present exchange or an existing state of facts. 45 As the Civil Law is in force in Louisiana, the requirement of consideration does not there obtain.46 § 112. Consideration distinguished from condition. As has been seen 47 an offer is a conditional promise; that is, a promise to take effect only if the exchange demanded for it is given. But the promise in an offer may be subject to other conditions than the giving of the requested consideration. Thus, an offer to insure property in exchange for a premium is a promise to pay insurance money in case the building insured is destroyed if a premium is paid. A conditional promise may be sufficient consideration, and "when a man acts in consideration of a conditional promise, if he gets the promise he gets all that he is entitled to by his act, and if, as events turn out, the condition is not satisfied, and the promise calls for no performance, there is no failure of consideration." 48 "Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453; Duttera v. Babylon, 83 Md. 536, 35 Atl. 64; Fischer v. Union Trust Co., 138 Mich. 612, 101 N. W. 852, 68 L. R. A. 987. 42 Thompson v. Hudgins, 116 Ala. 93, 22 So. 632. Vehon v. Vehon, 70 Ill. App. 40; Mawhinney v. Cassio, 63 N. J. L. 412, 43 Atl. 676. #Parish v. Stone, 14 Pick. 198, 25 Am. Dec. 378. 442 Conrad v. Manning, 125 Mich. 77, 83 N. W. 1038. Martin's Estate, 131 Pa. St. 638, 18 Atl. 987. 45 Supra, § 4. 46 La. Civ. Code, Art. 1896. "By the cause of the contract . . . is meant the consideration or motive for making it." A promise to the creditor of another to pay the debt is held to require no other cause or consideration than the existence of the debt. New Orleans, etc., R. Co. v. Chapman, 8 La. Ann. 97. 47 Supra, § 25. 48 Holmes, J. in Gutlon v. Marcus, 165 Mass. 335, 336, 43 N. E. 125. So it was held in Ehlen v. Selden, 99 Md. 699, 59 Atl. 120, that where an agreement was made by which the plaintiff was to hold himself in readiness to lend the defendant money on |