from a tort is not a sufficient consideration.63 The only qualification that must be borne in mind in connection with this matter, is that if there is reasonable doubt and honest belief that a certain claim is not tortious, forbearance of the claim will be a sufficient consideration although in fact the exercise of the claim would have involved the commission of a tort.64 § 133. Performance or promise of performance of an act which the law holds the promisee bound to do, is no valid consideration though the law provides no means for the enforcement of the legal duty. There are certain duties for the breach of which the law provides no remedy; but which it, nevertheless, recognizes so far as to invalidate any agreement in contravention of them, and perhaps so far as to regard the performance of the duty, no legal detriment to one party or benefit to the other. Many agreements are not enforced because opposed to public policy, though contemplating a violation only of a duty to which the law attaches no sanction.65 So the performance of such a duty may be regarded by the law as no sufficient consideration. Thus the promise of a wife who had left her husband without cause, to return was held insufficient consideration for a counter-promise,66 as was a wife's care, nursing and attendance on her husband while he was sick.67 But since public policy does 63 Cowper v. Green, 7 M. & W. 633; Manigault v. Ward, 123 Fed. 707; Massachusetts Mut. Life Ins. Co. v. Green, 185 Mass. 306, 70 N. E. 202; Conover v. Stillwell, 34 N. J. L. 54; Crosby v. Wood, 6 N. Y. 369; Tolhurst v. Powers, 133 N. Y. 460, 31 N. E. 326; Marcus v. Mayer, 147 N. Y. S. 873; Fink v. Smith, 170 Pa. 124, 32 Atl. 566, 50 Am. St. Rep. 750; Erny v. Sauer, 234 Pa. 330, 83 Atl. 205. Compare Rogers Development Co. v. Southern California Investment Co., 159 Cal. 735, 115 Pac. 934, 35 L. R. A. (N. S.) 543, where the surrender of real estate in possession of a defaulting buyer was held valid consideration for a promise by the seller, though the seller had the legal right to reclaim possession on account of the default. 64 See infra, § 135. 65 See infra, §§ 1628 et seq. 66 Miller v. Miller, 78 Iowa, 177, 35 N. W. 464, 16 Am. St. Rep. 431. But if owing to the husband's misconduct the wife was not bound to return, her doing so is sufficient consideration. Mack v. Mack, 87 Neb. 819, 128 N. W. 527, 31 L. R. A. (N. S.) 441, 94 Neb. 504, 143 N. W. 454. As to the public policy of such agreements, see infra, § 1744. 67 Foxworthy v. Adams, 136 Ky. 403, 124 S. W. 381, 27 L. R. A. (N. S.) 308. not require such severe treatment of those who seek to make bargains based on performance of a moral duty as a consideration, as for those who enter into bargains to violate such a duty, courts have not been so strict in denying the validity of consideration where a moral duty was performed, as they have in holding agreements invalid as against public policy where they contemplated a violation of the same duty. Thus an agreement to get drunk would doubtless be against public policy, but an agreement to refrain from doing so would be sufficient consideration for a counter-promise.68 And the same may be said of most other merely moral duties.69 § 134. Consideration void in part. It is no objection to the sufficiency of consideration that much of what was requested and given as such would be insufficient to support a contract. If a legal detriment to the promisee or benefit to the promisor is given, the consideration is valid though much also was requested and given which was neither detrimental to the one, nor beneficial to the other.70 It should be observed, however, that though a portion of the consideration requested would be in itself of no validity as consideration to support a promise, that portion must nevertheless be given in order to create a contract, otherwise mutual assent would be lacking. If A says to B, I will give you a horse if you will pay the debt you owe me and do a specified piece of work, B's payment of the debt is of no validity in itself as consideration, but mutual assent would be lacking unless the debt was paid as well as the specified work done. Consideration which is merely void or invalid must be distinguished from consideration which is positively illegal. If consideration is even partially illegal the whole agreement 68 Talbott v. Stemmons' Ex'r, 89 Ky. 222, 12 S. W. 297, 25 Am. St. Rep. 531; Lindell v. Rokes, 60 Mo. 249, 21 Am. Rep. 395. See also Hamer v. Sidway, 124 N. Y. 538, 27 N. E. 256, 12 L. R. A. 463, 21 Am. St. Rep. 693. 69 Jamieson v. Renwick, 17 Vic. L. Rep. 124; Dunton v. Dunton, 18 Vic. 70 Bradburne v. Bradburne, Cro. Eliz. 149; King v. Sears, 2 C. M. & R. 48; Ensign v. Coffelt, 102 Ark. 568, 145 S. W. 231; Cobb v. Cowdery, 40 Vt. 25, 94 Am. Dec. 370; Ridlon v. Davis, 51 Vt. 457. is tainted unless the legal portion of the agreement is severable.71 Somewhat analogous to consideration void in part is the case of a promise based partly on moral obligation or motive of generosity, as where a sum is promised in return for past as well as present consideration; or partly in return for services and, confessedly, partly as a gift. If one undivided sum is thus promised, the promise is supported by valid consideration.72 $135. Forbearance or promise of forbearance as considera tion. The early English law apparently made no distinction in regard to the sufficiency of a claim which the claimant forbore to prosecute, or promised to forbear to prosecute, as the consideration of a promise, other than the broad distinction between good and bad claims. The forbearance or promise to forbear to prosecute an unfounded claim was insufficient consideration.73 Such decisions necessarily involve the principle that the forbearance to prosecute an unfounded claim is no legal detriment. It is obvious that a claimant whether his claim is well or ill founded, has the actual power to prosecute his claim at law, but in spite of this power he was regarded by the law as under a duty of imperfect obligation to refrain from prosecuting an action if his claim was unfounded. In the 71 In Cobb v. Cowdery, 40 Vt. 25, 28, 94 Am. Dec. 370, the court refers to "The general principle . . . that if part of a consideration be merely void, the contract may be supported by the residue of the consideration, if good per se; Bradburne v. Bradburne, Cro. Eliz. 149; Tisdale's Case, Cro. Eliz. 758; Crisp v. Gamel, Cro. Jac. 128; but if any part of a consideration be illegal, it vitiates the whole. Featherston v. Hutchinson, Cro. Eliz. 199; Bridge v. Cage, Cro. Jac. 103; Scott v. Gilmore, 3 Taunt. 226; Woodruff v. Hinman, 11 Vt. 592; 2 Saund. R. (Patteson & Wms. ed.), 136, n. 2." So a covenant under seal based on consideration which is illegal or opposed to pub lic policy is as invalid as if the promise were parol. See infra, § 1780. 72 Parke, etc., Co. v. San Francisco Bridge Co., 145 Cal. 534, 78 Pac. 1065; Irwin v. Locke, 20 Colo. 148, 36 Pac. 898; Fisk, etc., Co. v. Reed, 32 Colo. 506, 77 Pac. 240; Reisler v. Silbermintz, 99 N. Y. App. Div. 131, 90 N. Y. S. 967; Foxworthy v. Adams, 136 Ky. 403, 124 S. W. 381, 27 L. R. A. (N. S.) 308. See also infra, § 141. 73 Barnard v. Simons, 1 Rolle's Abr. 26, pl. 39, Loyd v. Lee, 1 Strange, 94; Jones v. Ashburnham, 4 East, 455. Other early decisions holding forbearance of a groundless claim insufficient consideration are collected in 12 Harv. L. Rev. 517, n. 2. early part of the nineteenth century an advance was made from the position of the earlier authorities, and it was held that forbearance to prosecute a suit which had been already instituted was sufficient consideration without inquiring whether the suit would have been successful or not.74 The case is ordinarily cited for the proposition that forbearance of a doubtful claim is good consideration. Such a rule necessarily implies that a claimant whose claim is doubtful, whether in fact or law, has a right recognized by law to continue a prosecution which has been begun; and probably at the present time every court would admit this to be true, and hold further that forbearance or a promise to forbear suit upon a doubtful claim is sufficient consideration whether suit has or has not previously begun.75 What constitutes a doubtful claim within the meaning of this rule, however, is not always easily defined. The most recent English cases have gone still further and held that if a claim is honestly asserted and is "reasonable" or is "not vexatious and frivolous," the forbearance or the promise of forbearance to prosecute the claim is valid consideration.76 It is sometimes supposed that the test is made to depend wholly on the honesty of the claimant, but the decisions seem also to require something of reasonableness in the claim. Whether the test of reasonableness is based on the intelligence of the claimant himself, who may be an ignorant person with no knowledge of law, and little sense as to facts, is not so clear, but probably the claim forborne must be neither absurd in fact from the standpoint of a reasonable man in the position of the claimant, nor, obviously unfounded in law to one who has an elementary knowledge of legal principles." Whatever the rule may be in this respect there is 74 Longridge v. Dorville, 5 B. & Ald. 117. 75 See cases cited infra, n. 78, 79. Cook v. Wright, 1 B. & S. 559; Callisher v. Bischoffsheim, L. R. 5 Q. B. 449; Miles v. New Zealand Alford Est. Co., 32 Ch. D. 266; Holworthy Urban Council v. Holworthy Rural Council, [1907] 2 Ch. 62. "In Neubacher v. Perry, 57 Ind. App. 362, 103 N. E. 805, however, the court in speaking of a compromise of a written contract said if the appellant in good faith was contending for a construction "which might reasonably be contended for by one not versed in the law," the surrender of his claim would be sufficient consideration. Ockford v. Barelli, 20 W. Rep. 116, perhaps goes farthest in sustaining forbearance or compromise as good consideration when a claim is honestly made no difficulty in finding sufficient consideration. The fundamental question is when does the law hold that a man has not merely the power but the right to assert and attempt to enforce a claim. If he has a right to attempt to enforce a frivolous claim, provided his intelligence is so moderate that he can do so in good faith, forbearance to exercise the right is sufficient consideration. If the law here as generally imposes the standard of reasonableness and regards it as improper though not action in spite of the fact that the claim is obviously absurd. The plaintiff in that case had gone through a marriage ceremony with her uncle who had at the time a wife living, though this was not known to the plaintiff. The marriage, therefore, was void, both because it was bigamous and was within the forbidden degrees of relationship. After the death of the uncle a claim against his estate was made by the plaintiff. At a family conclave it was agreed that the plaintiff should have one-third in consideration of her forbearing to assert a claim. The jury found that the plaintiff when she made this agreement believed herself to be the widow of the deceased. The court sustained a verdict for the plaintiff, saying in a brief opinion that they were unable to distinguish the case from Callisher v. Bischoffsheim, L. R. 5 Q. B. 449. In that case, however, the facts did not show as they did in Ockford v. Barelli, that however honest the claim, it was wholly absurd; and the facts which made it so could not have been seriously disputed. Cf. with Ockford v. Barelli, Moore v. Moore, 255 Fed. 497 (C. C. A.). In Miles v. New Zealand Alford Est. Co., 32 Ch. D. 266, 291, Lord Bowen said: "I think, therefore, that the reality of the claim which is given up must be measured, not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concession." But later, in the same opinion, he says: "When the Master of the Rolls in Ex parte Banner, L. R. 17 Ch. D. 480, says he doubts, if there was really and obviously no cause of action, whether the belief of the parties that there was, would be sufficient ground for a compromise, I agree if by that he means there must be a real cause of action,— that is to say, one that is bona fide and not frivolous or vexatious; but I do not agree if he means by a real cause of action which commends itself to the ultimate reasoning of the tribunal which has to consider and determine the case." The latter extract apparently indicates that some degree of reasonableness besides the plaintiff's honesty is necessary. In Blount v. Dillaway, 199 Mass. 33, 85 N. E. 477, 17 L. R. A. (N. S.) 1036, the court held that it was not necessary for a plaintiff who had received a promise in consideration of forbearing to contest a will to show that she had reasonable cause to believe that she had some fair chance of succeeding in the contest. The court, however, considered somewhat the facts of the case, and held that the claim could not be considered vexatious or frivolous. In Neikirk v. Williams 81 W. Va. 558, 94 S. E. 947, L. R. A. 1918 F, 665, a promise to pay for the cancellation of a life insurance policy, when the promisor was under no liability to pay the premiums was held unenforceable. |