itously promised to one who, relying upon the promise, has entered upon the land and made improvements, it has been held that equity will specifically enforce the promise to convey the land. 38 A promise not to enforce or foreclose a mortgage, in reliance upon which the promisee has made improvements, has been similarly held binding.39 It is to be noticed that in enforcing conveyances in such cases, equity regards only possession of the land and improvements upon it. No other detriment would suffice.40 It is probable that the actual delivery of possession of the land has been regarded as analogous to completing a gift.

Another class of cases which seem to rest on the ground of promissory estoppel are promised marriage settlements. It is said to be the policy of the law to favor such settlements and in accordance with this policy promises which often seem to have been intended as gratuitous have been enforced when a marriage has taken place in reliance upon them Doubt

38 Neale v. Neale, 9 Wall. 1, 9, 19 L. Ed. 590; Guynn v. McCauley, 32 Ark. 97; Bakersfield Assoc. v. Chester, 55 Cal. 98; Beall v. Clark, 71 Ga. 818; Irwin v. Dyke, 114 Ill. 302, 1 N. E. 913; Clancy v. Flusky, 187 Ill. 605, 58 N. E. 594; Hughes v. Lindsey, 31 Ia. 329; Pranger v. Pranger, 182 Ia. 639, 164 N. W. 607; Bigelow v. Bigelow, 93 Me. 439, 45 Atl. 513; Hardesty v. Richardson, 44 Md. 617, 22 Am. Rep. 57; Potter v. Smith, 68 Mich. 212, 35 N. W. 916; Dozier v. Matson, 94 Mo. 328, 7 S. W. 268, 4 Am. St. Rep. 388; Story v. Black, 5 Mont. 26, 1 Pac. 1, 51 Am. Rep. 37; Seavey v. Drake, 62 N. H. 393; Young v. Overbaugh, 145 N. Y. 158, 39 N. E. 712; Messiah Home v. Rogers, 212 N. Y. 315, 106 N. E. 59; Schroder v. Wanzor, 36 Hun, 423; Pugh v. Spicknall, 43 Ore. 489, 73 Pac. 1020; Scott v. Lewis, 40 Ore. 37, 66 Pac. 299; Royer v. Ephrata Borough, 171 Pa. 429, 33 Atl. 361; Johnson v. Townsend, 77 Tex. 639, 14 S. W. 233; Grigsby v. Osborn, 82 Va. 371; Harrison v. Harrison, 36 W. Va. 556, 15 S. E. 87. See also Crosbie v. McDoual, 13 Ves.

148; Mereness v. DeLemos, 91 Conn. 651, 101 Atl. 8. But see the contrary decisions of Tolleson v. Blackstock, 95 Ala. 510, 513, 11 So. 284; Usher's Ex's v. Flood, 83 Ky. 552; Ridley v. McNairy, 2 Hump. 174. The matter is discussed by Pound in 13 Ill. L. Rev. 435, 440.

39 Faxton v. Faxon, 28 Mich. 159; Roe v. Fleming, 32 Okl. 259, 122 Pac. 496.

40 In this connection should be considered the doctrines of equity in regard to the enforcement of oral contracts for the sale of land, because of part performance. See infra, § 494.

41 Ayliffe v. Tracy, 2 P. Wms. 65; Shadwell v. Shadwell, 9 C. B. (N. S.) 159; Bold v. Hutchinson, 20 Beav. 250; Laver v. Fielder, 32 Beav. 1; Coverdale v. Eastwood, L. R. 15 Eq. 121; Keays v. Gilmore, Ir. Rep. 8 Eq. 290; Phalen v. United States Trust Co., 186 N. Y. 178, 186, 78 N. E. 943, 7 L. R. A. (N. S.) 734. In Laver v. Fielder, 32 Beav. 1, Romilly, M. R., said: "It is of great importance that all persons should understand that when a man makes a

less there are reasons of justice for enforcing promises which have led the promisee to incur any detriment on the faith of them, not only when the promisor intended, but also when he should reasonably have expected such detriment would be incurred, though he did not request it as an exchange for his promise. Students of the Civil Law usually select the technicalities of the English and American law requiring consideration to validate a simple contract, for particular animadversion; and there is not infrequently observable in the decisions of American courts in cases of hardship an impatience with the requirement and an effort to enlarge the boundaries of enforceable promises. If this sentiment should find general expression, it may fairly be argued that the fundamental basis of simple contracts historically was action in justifiable reliance on a promise-rather than the more modern notion of purchase of a promise for a price, and that it is a consistent development from this early basis to define valid consideration as any legal benefit to the promisor or legal detriment to the promisee given or suffered by the latter in reasonable reliance on the promise. Such a definition eliminates the necessity of a request by the promisor for the consideration. The proposition is by no means without intrinsic merit, but it should be recognized that if generally applied it would much extend liability on promises, and that at present it is opposed to the great weight of authority. A class of cases where a genuine estoppel exists must be distinguished from those discussed in this section. Where a note has been executed to a bank to make an appearance of assets to deceive the bank examiners and enable the bank to continue business, a receiver of the bank can maintain an action on the note, although as between the bank and the maker there was no consideration.42 Here there is a misstatement of fact made to

solemn engagement upon an important occasion, such as the marriage of his daughter, he is bound by the promise he then makes. If he induce a person to act upon a particular promise, with the particular view, which affects the interests in life of his own children and of the persons who become united to

them, this court will not permit him afterwards to forego his own words and say that he was not bound by what he then promised." See also De Cicco v. Schweizer, 221 N. Y. 431, 117 N. E. 807.

42 Golden v. Cervenka, 278 Ill. 409, 427, 116 N. E. 273; Niblack v. Farley,

a third person representing the creditors, and action is taken relying thereon.

§ 140. Mutuality.

It is often stated as if it were a requisite in the formation of contracts, that there must be mutuality.43 This form of statement is likely to cause confusion and however limited is at best an unnecessary way of stating that there must be valid consideration. In unilateral contracts there is never mutuality of obligation; 44 and in bilateral agreements though it is necessary that there shall be such a promise on each side as will furnish valid consideration, to express the idea by saying that mutuality is necessary is sure to cause confusion with the use of the same word by courts of equity.45 Lack of mutuality, as that phrase is used by courts of equity, is not necessarily any objection to the existence of a contract. It is said that equity will not give specific performance to a contract unless there is mutuality; that is, unless the plaintiff's own promise so far as it is still unperformed is capable of specific enforcement. It may not be thus capable for various reasons which will not invalidate the contract.46 Sometimes the question involved where

286 Ill. 536, 122 N. E. 160; Best v. Thiel, 79 N. Y. 15; Lyons v. Benney, 230 Pa. 117, 79 Atl. 250, 34 L. R. A. (N. S.) 105; Dominion Trust Co. v. Ridall, 249 Pa. 122, 94 Atl. 464.

43 A few illustrations of this use from recent cases may be found in Hazelhurst Lumber Co. v. Mercantile &c. Co., 166 Fed. 191; Jenkins v. Anaheim Sugar Co., 237 Fed. 278; Ellis v. Dodge, 237 Fed. 860; Marin Water &c. Co. v. Sausalito, 168 Cal. 587, 143 Pac. 767; Ayer & Lord Tie Co. v. O'Bannon, 164 Ky. 34, 174 S. W. 783; Killebrew v. Murray, 151 Ky. 345, 151 S. W. 662; Hudson v. Browning, 264 Mo. 58, 174 S. W. 393; Grossman v. Schenker, 206 N. Y. 466, 100 N. E. 39; Great Northern R. Co. v. Sheyenne Tel. Co., 27 N. Dak. 256, 263, 145 N. W. 1062; Texas Produce Exchange v. Sorrell (Tex. Civ. App.), 168 S. W. 74.

44 In Whittle v. Frankland, 2 B. & S. 49, 55, Crompton, J., said: "I never could understand that mutuality doctrine. Take the case of a contract of guarantee; the only question there is, was there any consideration to support the contract?" See discussion of the matter in Rague v. Publishing Co., 164 N. Y. App. D. 126, 149 N. Y. S. 668; Western Newspaper Union v. Kitchel, 201 Mich. 121, 166 N. W. 1021. Nevertheless mutuality is not infrequently stated to be a "cardinal requirement" of contracts, as it was in the opinion of the court in Oakland Motor Car Co. v. Indiana Automobile Co., 201 Fed. 499, 504, 121 C. C. A. 319.

45 Various shades of meaning given to the word are noted by Professor Gilbert in 4 Calif. L. Rev. 122.

46 See infra, §§ 1433 et seq.

mutuality is discussed is whether one party to the transaction can by fair implication be regarded as making any promise; 47 but this is simply an inquiry whether there is consideration for the other party's promise. The particular error which is traceable to the misleading use of the word mutuality as a requirement for the formation of contracts, is a tendency observable in some cases to hold a contract invalid because the obligation undertaken on one side is not commensurate with that undertaken on the other. Especially where one party is given an option, not accorded to the other, of discontinuing or extending performance or of cancelling or renewing the contract or of determining the extent of performance, confusion has arisen. If the option goes so far as to render illusory the promise of the party given the option, 48 there is indeed no valid consideration, and therefore no contract, but the mere fact that the option prevents the mutual promises from being coextensive does not prevent both promises from being binding according to their terms.49 A court of equity might indeed refuse to enforce spe

"See supra, § 90.

See supra, §§ 43, 104.

49 Such contracts were therefore enforced in Pilkington v. Scott, 15 M. & W. 657 (employment for seven years with right in employer to discharge on notice of a month or wages for that period). Central Trust Co. v. Chicago Auditorium Assoc., 240 U. S. 581, 36 S. Ct. 412, 415, 60 L. Ed. 811 (contract with a hotel for baggage and livery privileges for five years with the right reserved to the hotel to cancel on six months' notice); McCall Co. v. Wright, 133 N. Y. App. D. 62, 117 N. Y. S. 775, 198 N. Y. 143, 91 N. E. 516, 31 L. R. A. (N. S.) 249 (employment for six years with right in employer to discharge on notice of thirty days); Realty Advertising &c. Co. v. Englebert Tyre Co., 151 N. Y. S. 885, 89 N. Y. Misc. 371 (advertising contract with right in plaintiff to cancel on five days' notice); Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871, L. R. A. 1915 C, 367 (option in lease

giving lessee right to purchase; citing other cases to the same effect). See also Marin Water &c. Co. v. Sausalito, 168 Cal. 587, 143 Pac. 767; United States Expansion Bolt Co. v. Marmerstein, 181 N. Y. App. D. 790, 169 N. Y. S. 244. On the other hand, in Tweedie Trading Co. v. Parlin & Orendorff Co., 204 Fed. 50, 122 C. C. A. 364, in a suit in admiralty, a shipping contract was held invalid which gave the carrier an option as to when and what it would carry during most, but not all, of the year, during which the contract was to be in force. See also Killebrew v. Murray, 151 Ky. 345, 151 S. W. 663; Owens v. Corsicana Petroleum Co. (Tex. Civ. App.), 169 S. W. 192.

Some courts, too, owing to a mistaken view as to the requirement of mutuality, have been led to hold that a promise to buy from the promisee all goods of a certain kind which the promisor needed or should buy from any one, is not a sufficient consideration because there is no engagement to buy

cifically such a contract if it seemed oppressive, but to deny its legal validity is to contradict directly the numerous cases which hold adequacy of consideration is a matter exclusively for the decision of the parties.50 The large class of cases where one party to a contract may reject performance which is not satisfactory to him,51 or to his architect or engineer, 52 while no corresponding privilege is given to the other party, is itself enough to establish what should need no argument, that the obligations of the parties to a contract need not be correlative or coextensive.

§ 141. One consideration may support several promises.

In many contracts there are more promises than one on a side. If each promise on one side is supported by a promise or performance allotted to it exclusively as its consideration, the contract is divisible.53 But frequently all promises or performances on one side are indiscriminately made consideration for all promises or performances on the other. And if the performances or promises on one side fulfil the legal requirements of consideration they will support any number of counter-promises on the other.54 A common illustration

some specific quantity, though it is clear that the performance of such a promise involves detriment in refraining from dealing with any other person than the promise. See supra, § 104. 50 See supra, § 115.

51 See supra, § 44.

52 See infra, §§ 794 et seq., and especially Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242; Young v. Stein, 152 Mich. 310, 116 N. W. 195, 17 L. R. A. (N. S.) 231, 125 Am. St. 412, Elliott Contracting Co. v. Portland, 88 Oreg. 150, 171 Pac. 760.

53 See infra, § 861.

54 Franklin Telegraph Co. v. Harrison, 145 U. S. 459, 36 L. Ed. 776, 12 S. Ct. 900; Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 Atl. 973, 58 L. R. A. 227, 90 Am. St. Rep. 627. Sixta v. Ontonagon Valley Land Co., 148 Wis. 186, 134 N. W. 341. In Pfeif

fer v. Adler, 37 N. Y. 164, it was held that an oral promise to sell goods to a responsible person on the usual terms, would not support an independent engagement to pay the antecedent debt of a third person. See also Luing v. Peterson, (Minn. 1919), 172 N. W. 692; and in Belknap v. Bender, 75 N. Y. 446, 31 Am. Rep. 476, it was held that a promise to work at what appeared to be full compensation would not support a promise to pay such a debt. In both of the New York cases the primary question was whether the promise was to answer for the debt of another and, therefore, within the Statute of Frauds; but in so far as they hold that aside from the necessity of a writing, the agreements were invalid because the consideration was insufficient, they are indefensible. (A contrary decision is Davies v. Carey, 72 Wash. 537, 130