How far

66

p. 237; Smith vs. Weed, 20 Wend., p. 184; Heinman
vs. Moulton, 14 Johns., p. 466; Hilliard vs. Austin, 17
Barb., p. 141. "Or agreed to be suffered."-Decker
vs. Judson, 16 N. Y., p. 449; Smith vs. Algar, 1 Barn.
& Ad., p. 603; Conover vs. Brush, 2 N. Y. Leg. Obs.,
p. 289.
By such person."-Decker vs. Judson, 16
N. Y., p. 449. "Other than such as he is lawfully
bound to suffer."-Livingston vs. Rogers, 1 Caines R.,
p. 583; Utica & Syracuse R. R. vs. Brinckerhoff, 21
Wend., p. 139; Roscorla vs. Thomas, 3 Q. B., p. 234.
A past and executed consideration is not sufficient.
When the debt of A already created is promised to be
paid by B, no new term being introduced in the con-
tract, as delay or the like, it is not binding upon B,
there being no consideration.-Comstock vs. Breed, 12
Cal., p. 286; but see Feeny vs. Daly, 8 Cal., p. 84.
Where A appeals from a judgment against him, and B
becomes his surety on the appeal bond, and A to secure
B for his liability on the appeal bond assigns to B a
liquidated demand held by A against third parties,
the liability of B on appeal bond is sufficient considera-
tion for the assignment.-Hobbs vs. Duff, 23 Cal., p.
596. Paying part of a note when all is due, was held
no consideration for an agreement to extend the time
of payment.-Liening vs. Gould, 13 Cal., p. 598; see,
also, McCann vs. Lewis, 9 Cal., p. 246. A note
given for the release of property seized for a toll
imposed by a State law on logs and lumber floating
down a stream from that State into another State,
was held without consideration, the toll being illegal.
C. L. R. Co. vs. Patterson, 33 Cal., p. 334. An offer
of reward, contained in an advertisement, is a condi-
tional promise. If any one perform the service before
the offer is revoked, it is a good consideration.-Ryer
vs. Stockwell, 14 Cal., p. 134.

1606. An existing legal obligation resting upon moral obli- the promisor, or a moral obligation originating in

legal or

gation is a good consideration.

some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise.

NOTE.-"Legal obligation."-Spencer vs. Ballow, 18 N. Y., p. 330. "Moral obligation." The common law does not recognize moral obligations, except in a few cases, as sufficient to sustain a promise.-Whipley

1607.

vs. Dewey, 8 Cal., p. 36; Nash vs. Russell, 5 Barb., p.
556; Geer vs. Archer, 2 Barb., p. 420; Watkins vs.
Halstead, 2 Sandf., p. 311; Ehle vs. Judson, 24 Wend.,
p. 97; Smith vs. Ware, 13 Johns., p. 257; Beaumont
vs. Reeve, 8 Q. B., p. 483; Eastwood vs. Kenyon, 11
Ald. & El., p. 438. But see, to the contrary, Doty vs.
Brown, 14 Johns., p. 381; Lee vs. Muggeridge, 5 Taunt.,
p. 36. The authorities, however, entirely fail to estab-
lish any satisfactory principle upon which to distin-
guish between the different species of moral obliga-
tions. Thus, in Bunn vs. Winthrop, 1 Johns. Ch., p.
329, past seduction was held a good consideration to
support a grant. In Beaumont vs. Reeve, 8 Q. B., p.
483, the same consideration was held insufficient to
support a promise. In Goulding vs. David on, 28
Barb., p. 438, it is said that there must have been, at
some time, an actual legal obligation. Yet in Rice vs.
Welling, 5 Wend., p. 595, and Early vs. Mahon, 19
Johns., p. 147, the original contract was usurious, and
therefore void from the beginning. The same may be
said of promises to pay debts contracted in infancy,
which are held valid. Goulding vs. Davidson was re-
versed.-26 N. Y., p. 604. The rule stated in the text
seems to be just, and to be, on the whole, as easily
reconcilable with the authorities as any other that can
be devised. "To an extent corresponding with the
extent of the obligation, but no further or otherwise.”—
See Phetteplace vs. Steere, 2 Johns., p. 442; Roscorlo
vs. Thomas, 3 Q. B., p. 234; Hopkins vs. Logan, 5 M.
& W., p. 247; Kaye vs. Dutton, 8 Scott N. R., pp. 495,
502; S. C., Ray vs. Dutton, 7 Man. & G., p. 807; Elder-
ton vs. Emmens, 6 C. B., p. 160; 13 id.,
p. 495.

The consideration of a contract must be considera

lawful within the meaning of Section 1667.

tion lawful.

illegality.

1608. If any part of a single consideration for one Effect of its or more objects, or of several considerations for a single object, is unlawful, the entire contract is void.

NOTE. This principle is deducible from all the cases taken together, though not to be found thus stated in any one case. Thus, there is no doubt that if the consideration is single, or in other words indivisible, its partial illegality is fatal to the contract.-See Valentine vs. Stewart, 15 Cal., p. 387; Ha-kell vs. Mellenry, 4 Cal., p. 411; Norris vs. Haris, 15 Cal., p. 226; Mills vs. Mills, 36 Barb., p. 474; Rose vs. Truax, 21 id., p.

Considera

tion

361; Pepper vs. Haight, 20 id., p. 429; Barton vs. Port Jackson Plank Road Co., 17 id., p. 397; Burt vs. Place, 8 Cow., p. 431; see Brown vs. Brown, 34 Barb., p. 533; Porter vs. Havens, 37 id., p. 343. The limita tions of the rules are conformable to the principle of Secs. 1598 and 1599.

1609. A consideration may be executed or execuexecuted or tory, in whole or in part. In so far as it is executory it is subject to the provisions of Chapter IV of this Title.

executory.

Executory

consideration.

How ascer

tained.

Effect of impossibility of ascertain

ing consideration.

1610. When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining it. It may be left to the decision of a third person, or regulated by any specified standard.

1611.

NOTE." Not indispensable that the contract should specify its amount or the means of ascertaining it." So held as to sales.-Hoadly vs. McLaine, 10 Bing., p. 487; Joyce vs. Swann, 17 C. B. (N. S.), p. 84. "May be left to the decision of a third person." So held as to the price of goods sold.-Brown vs. Bellows, 4 Pick., p. 189. "Or regulated by any specified standard." There is, perhaps, no precedent for a general provision of this kind under the head of contracts; but as it applies to contracts of sale, hire, employment, deposit, carriage, and insurance, there is no reason why it should work injustice if applied to other contracts, though probably it will scarcely ever be needed for them.

When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth.

NOTE.-Hoadly vs. McLaine, 10 Bing., p. 487; Brown vs. Bellows, 4 Pick., p. 189.

1612. Where a contract provides an exclusive method by which its consideration is to be ascer

tained, which method is on its face impossible of execution, the entire contract is void.

NOTE.-Pothier on Sale, N. 24.

1613. Where a contract provides an exclusive Same. method by which its consideration is to be ascertained, which method appears possible on its face, but in fact is, or becomes, impossible of execution, such provision only is void.

1614.

NOTE.-Pothier (Sale, N. 34) holds that the contract in such case is voidable, and this view has been adopted by some writers in this country (Story on Sales, Sec. 220; 1 Pars. Cont., 5th ed., p. 525), but it seems more probable that the common law would regard the contract as made for a reasonable consideration, to be ascertained in any usual way. Thus, where a covenant to renew a lease provides for an arbitration to determine the rent, and no award is ever made, the Court will enforce the renewal at a reasonable rent.-Reformed Dutch Church vs. Parkhurst, 4 Bosw., p. 491; Dunnell vs. Keteltas, 16 Abb. Pr., p.

205.

A written instrument is presumptive evi- Written dence of a consideration.

instrument presumtive evidence of considera

NOTE.-Riggs vs. Waldo, 2 Cal., p. 485; Stewart vs. tion.
Street, 10 Cal., p. 372; Spear vs. Ward, 20 Cal., p. 659.
It is only presumptive, however, and may be inquired
into.-Fisher vs. Salmon, 1 Cal., p. 413; Coles vs.
Soulsby, 21 Cal., p. 47; Bennett vs. Solomon, 6 Cal.,
p. 134. At common law, a want of consideration could
not be pleaded to a suit on a sealed instrument, the
presumption of consideration being conclusive. The
law of this State modified the rule so far as to allow it
to be rebutted in the answer.-McCarty vs. Beach, 10
Cal., p. 461; Wills vs. Kempt, 17 Cal., p. 98. The
unmeaning distinction between sealed and unsealed
instrument being done away with by statute, the con-
sideration of a sealed bond may be impeached.-Com-
stock vs. Breed, 12 Cal., p. 286.

Burden of

1615. The burden of showing a want of consideration sufficient to support an instrument lies with the invalidate

proof to

party seeking to invalidate or avoid it.

sufficient considera

tion.

NOTE.-See cases cited to note on preceding section.

Contracts, express or

implied.

Express contract, what.

Implied contract, what.

What con

tracts may be oral.

TITLE II.

MANNER OF CREATING CONTRACTS.

SECTION 1619. Contracts, express or implied.

1620. Express contract, what.

1621. Implied contract, what.

1622. What contracts may be oral.

1623. Contract not in writing through fraud,
forced against fraudulent party.

1624. What contracts must be written.

1625. Effect of writing.

1626. Contract in writing, takes effect when.

may be en

1627. Provisions of Chapter on transfers of real property. 1628. Corporate seal, how affixed.

1629. Provisions abolishing seals made applicable.

1619. A contract is either express or implied.

NOTE. The only difference between an express and an implied contract, not under seal, is in the mode of substantiating it.-See Smith vs. Moynihan, July Term, 1872, Sup. Ct. Cal. An express contract is proved by an actual agreement. An implied contract by circumstances, and the course of dealing between the parties. But whenever a contract is once proved, the conse quences resulting from the breach of it must be the same whether it be proved by direct or circumstantial evidence.-Marzetti vs. Williams, 1 B. & Ad., p. 423; Hilliard on Contracts, p. 52.

1620. An express contract is one, the terms of which are stated in words.

NOTE.-Story on Contracts, ? 11.

1621. An implied contract is one, the existence and terms of which are manifested by conduct.

NOTE.-Story on Contracts, ? 11. The ordinary definition of an implied contract includes obligations imposed by law upon parties, as between each other. These obligations are, however, considered in another part of the Code.

1622. All contracts may be oral, except such as are specially required by statute to be in writing.

NOTE.-See Bank of Rochester vs. Jones, 4 N. Y.,

p. 497; Flory vs. Denny, 7 Exch., p. 581.