PARKER, J.: "The defendant contends that the contract was without consideration

invalid.

He asserts that the promisee not harmed but benefited; and insists that

and therefore

less the promisor (the uncle) was benefited, the contract was without consideration.' Courts will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to anyone. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him. Anson's Prin. of Con. 63. 'In general a waiver of any legal right at the request of another party is a sufficient consideration for a promise.' Parsons on Contracts, 444.

"Now, applying this rule to the facts before us, the promisee used tobacco, occasionally drank liquor, and he had a legal right to do so. That right he abandoned for a period of years upon the strength of the promise of the testator that for such forbearance he would give him $5,000.

Question 85: What was the promise in Case 85 which was sought to be enforced? What was the consideration for it? What of the argument that the promisee was benefited by what he did? And the argument that the promisor was not benefited? § 82. (Contracts, Sec. 50.) Inadequacy of consideration. Case 86. Nelson v. Brassington, Wash., 116 Pac.

629.

Facts: A sold a business to B under an agreement that A should not enter into a competing business in a prescribed area. The price agreed to be paid under the contract was merely the fair cash value of the tangible property. In a suit to enforce the restraint the defendant claims that there was no consideration for the agreement.

Point Involved: Whether the court will inquire into the adequacy of the consideration agreed upon by the parties.

"The trial court found that the fair market value of the several articles of personal property sold by the respondent to the appellant approximated the sum paid as the consideration for the sale, and hence concluded that there was no consideration for the remaining part of the agreement not to enter into business within the prohibited territory. But this is not the correct test. Courts in transactions of this kind do not inquire into the adequacy of the consideration. This, in the absence of fraud or over-reaching, is solely the business of the parties. The court inquires only into the legality of the consideration, not whether the party to be bound made an improvident bargain."

Question 86: A desires to sell his store business to B. The cash value of the inventory is $1,000. B says "I will buy the business and pay you $1,000 if you will agree not to compete within a three mile radius for 5 years. A agrees and the business is sold. Is there consideration for the promise not to compete? Will the court question the adequacy of a consideration in determining whether a contract is valid?

(Note: Nominal consideration. Where there is a nominal consideration, as for instance "one dollar," its inadequacy is immaterial as in other cases, but it is a pertinent question whether the dollar was really a consideration or a mere recital. Sometimes contracts recite that "in consideration of $1.00 each to the other paid." This does no harm if there is in fact other consideration, but its recital seems foolish, for each dollar offsets the other, although many lawyers use such a phrase. (See Williston on Contracts, Sec. 115.)

B. Examples of Consideration.

§83. Consideration may consist in promise or act.

§ 84. Past act.

§ 85. Performance of, or promise to perform, obligations imposed by law. § 86. Promise to perform unexecuted contract.

§ 87. Part payment of debt as consideration for release of balance.

§ 88. Compromise of disputed claim.

§ 89. Forbearance of suit.

§ 90. Consideration in subscriptions.

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§ 83. (Contracts, Sec. 51.) Consideration may consist of promise or act.

Case 87. American Cotton Oil Co. v. Kirk, 68 Fed. 791. Facts: This was an agreement to sell 10,000 barrels of oil at a stipulated price, in such quantities per week as the buyer might desire. Action for the breach of the alleged contract:

Point Involved: A promise is a valid consideration if of sufficient certainty to be enforceable. What constitutes sufficient certainty? Is a promise to sell as the other may desire a consideration?

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There are several BUNN, DISTRICT JUDGE: ""* but we have found it necessary to questions determine but one, and that is whether the contract is a valid contract for the sale and delivery of 10,000 barrels of oil, or is it invalid for want of mutuality in its provisions? A promise on the part of the defendant to sell and deliver 10,000 barrels, without a corresponding agreement on the part of the plaintiffs to purchase and receive it, would clearly be void for want of mutuality. Where, in this contract, as testified to by the plaintiffs, is there any agreement to order and receive 10,000 barrels? It is clear that the time of ordering, as well as the quantity, is left wholly to the discretion of the plaintiffs. Deliveries are to be made per week, as Kirk & Company desire. But suppose Kirk & Company do not desire, and do not order, or order in such quantities as would require a hundred years to complete the delivery, is there any way open to the defendant to put plaintiffs in default? We think not, and that there is no mutuality of promise for the sale of a definite or ascertainable quantity of oil. Suppose the plaintiffs had decided upon ordering six barrels of oil per week or one barrel for every working day. That would require 32 years for the fulfillment of the contract. And we can discover no way, by the terms of the contract, whereby the defendant could put the plaintiffs in default for failure to order more oil each week, because the amount and

times of ordering are left wholly to the plaintiffs. If the market price of oil should fall below the contract price, then, according to their contention as to the terms of the contract, the plaintiffs could purchase their supply of oil elsewhere and at the lower price, resorting to the contract when, and only when, the price stated was lower than the market price-and this without respect to time. Such a contract is one-sided, and without mutuality. If the contract had been that the plaintiffs should order and receive, and the defendant should ship, all the oil which would be required in the plaintiff's business for a definite period, not exceeding 10,000 barrels, there would be a mutual obligation. The plaintffs could not, in such case, order oil from other sources, and could be put at fault for not ordering and receiving all which was reasonably required to run their plant. The case would then come within the principle of National Furnace Company v. Keystone Manufacturing Company, 110 Ill. 427. In that case the National Furnace Company agreed to sell to the Keystone Company all of certain quality of pig iron, known as Lake Superior charcoal iron, which the Keystone Company would need, use or consume in its business during the coming season from July 9, 1879, to July 1, 1880, such amount supposed by the parties to be about 700 tons. This was held to be a good contract. The Court says: 'It cannot be said that the appellee (Keystone Company) was not bound by the contract. It has no right to purchase iron elsewhere for use in its business. If it had done so, appellant might have maintained an action for breach of the contract.'

"In the case at bar, there was no agrement on the part of plaintiffs to purchase from defendant all the oil they required in their business. They might order as little as they pleased, and supply the bulk of what they needed from other sources. The contract had the effect merely to bind the plaintiffs to receive and pay for at the stipulated price all the oil which might be shipped upon their order, from time to time, by the defendant,

not exceeding 10,000 barrels. Further than that it can have no binding force, for want of mutuality. *

Question 87: Was there any obligation in this case for Kirk & Co. to buy any oil from American Cotton Oil Co. What was the promise of Kirk & Co.? Why was it not a contract? What illustration is stated by the court as an enforceable agreement?

§ 84. (Contracts, Sec. 52.) Past Act

Case 88. Mills v. Wyman, 3 Pick. (Mass.) 207.

Facts: Defendant's adult son fell sick among strangers. Plaintiff cared for him. Defendant hearing of this promised to pay plaintiff for what he had done, but afterwards refused. This is a suit to enforce defendant's promise.

Point Involved: Is a promise to pay for a past act, gratuitously performed, enforceable as a contract?

PARKER, C. J.: "General rules of law established for the protection and security of honest and fair minded men, who may inconsiderately make promises without any equivalent, will sometimes screen men of a different character from engagements which they are bound in fora conscientia to perform. The rule that a

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mere verbal promise, without any consideration, cannot be enforced by action, is universal in its application and cannot be departed from to suit particular cases in which a refusal to perform such a promise may be disgraceful.

"The promise made in this case appears to have been made without any legal consideration. The kindness and services toward the sick son of the defendant were not bestowed at his request. The son was in no respect under the care of the defendant. He was twenty-five years old, and had long left his father's family. On his return from a foreign country he fell sick among strangers, and the plaintiff acted the part of the good Samaritan, giving him shelter and comfort until he died. The defendant, his father, promises in writing to pay the plaintiff for expenses he had incurred. But he has determined to break his promise.

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