duty will not make a promise binding. A promise to pay money to another, prompted by motives of gratitude for past favors, is not binding. But a moral obligation, supported by a past legal obligation, will support a promise and make it binding. If a debt is barred by the statute of limitations, or by a discharge in bankruptcy, and the debtor makes a new promise to pay it, it is a good promise for the reason that though there is no present legal obligation to pay there is a moral obligation, and when the moral obligation rests upon what was a previous legal obligation, it is a valuable consideration and will support a promise.

§ 252. Adequacy of consideration. The adequacy of consideration is something that courts will not inquire into except in cases of imposition or fraud. Parties capable of contracting are left to make their own bargains, and their mistaken estimates of values of things purchased or received will not be corrected. Where the inadequacy is so gross as to shock the moral sense it will be sufficient proof of fraud.

§ 253. Prior obligation as consideration.-Where the law has fixed the value of services to be performed, as by naming fees for official services, a promise to pay more is not binding. So, where one is already bound by a previous agreement, or by law to do a particular thing, the doing of the act is no consideration for a binding promise. If one owes a sum of money and pays part, and his creditor agrees to release him from the payment of the balance, it is not binding. But if a debtor gives his creditor some article not money, though of less value than the whole amount, and it is accepted for the whole debt,

it is a good discharge; and so if a debtor procures a friend to pay his creditor a sum less than the whole debt, such payment is a good consideration to support a promise to release the remainder. And a payment of a sum less than the whole debt before it is due is a good consideration to support a release.

§ 254. Promise to release debtor.-Where a man. is embarrassed and his creditors mutually agree to take a portion of their respective debts in discharge of all, it is binding, the consideration for the discharge being the mutual promises of the creditors and not the amounts of money they receive.

§ 255. Disputed claims.-Where there is a dispute as to the amount due, and the creditor agrees to accept less than what may really be due in discharge of the whole, it is good. Where a man makes a claim against another in good faith and threatens to bring suit, and money is agreed to be paid if he will not sue, the agreement is binding; but if the threat is merely to extort blackmail, and the claimant does not in good faith believe he has a just claim, such agreement can not be enforced. The consideration promised must be something beneficial to the promisee or to a third person, or a detriment to the promisor. A simple agreement to extend the time of payment is not binding, unless extra interest is agreed to be paid, or interest is paid in advance or something of value given. So, if one agrees to carry goods for nothing it is not binding, but if he receives the goods after making such a promise, he must carry and deliver them safely. Communicating knowledge, and the advice of a lawyer or physician are sufficient considerations. § 256. Impossible and illegal consideration.—An

agreement to do a thing absolutely impossible to be done is no consideration, nor will an agreement based upon an illegal or immoral consideration be binding. Where, at the time of the contract, the thing contracted for is not in existence, there is no consideration, as when two in good faith bargain for the purchase and sale of a horse, supposing it to be alive, when in fact at the time of the agreement it is dead.

§ 257. Executed and executory considerations.— The consideration is executed where the thing agreed for is done or given, and it is executory where the thing promised remains to be given or done. If one is employed to labor for a sum certain, the consideration is executed on his part when the labor is performed, and it is executory on the part of his employer until payment is made.

§ 258. Past consideration. The consideration. must consist of a present or future act; a past act can not serve as a consideration for a promise. This rule operates very harshly in some cases, as where a son of full age fell sick and was cared for by strangers, who paid the expenses of his sickness, it was held that a subsequent promise by the father to reimburse them could not be enforced. It is now established law that the past performance of services constitutes no consideration even for an express promise, unless they were performed under the express or implied request of the defendant, or unless they were done in performance of some duty resting on him.

§ 259. Failure and want of consideration.-A contract may be based on a consideration apparently good, but which fails altogether, in which event the contract

will not be enforced. As where a promissory note is given for a horse warranted to be sound, which turns out to have been diseased and worthless at the time, the maker of the note is absolved from his liability to pay it, unless it is a negotiable note in the hands of one who purchased it in good faith before it was due. Even where money is paid on a contract supposed to be valid, if the consideration fails the money may be recovered back. If there is no warranty of the thing sold, or if the defects complained of were apparent, failure of consideration can not be pleaded. Ordinarily, in a sale of personal property the seller warrants the title, but if at the sale it is clearly stated or understood that the seller is simply disposing of his interest in the thing sold, and the title fails, it is no failure of consideration, for the buyers gets all he bargained for. The subsequent depreciation in value of the thing sold, as when by new inventions a patent is made worthless, is not in law a failure of consideration.

If a contract is based upon a consideration in part legal and in part illegal, it will be enforced as to the legal part if it can be separated, but if no separation can be made, the whole contract fails for want of consideration.

A party to a contract, having full knowledge of the facts, may waive his right to plead a want or failure of consideration, as he may waive his right to plead the statute of limitations, his discharge in bankruptcy, his infancy or the like.

CHAPTER XXI.

STATUTE OF FRAUDS.

§ 260. History of the statute.-To prevent frauds and perjuries, a statute was enacted in the reign of Charles II in England, in the year 1677, providing that no action should be brought to enforce certain agreements, "unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." It is to be noticed that by this statute parties are not prohibited from making such agreements by parol, but the performance of such parol agreements is purely voluntary. It is simply declared that the courts will not aid in enforcing them. There is some curious history as to who is entitled to the credit of suggesting or formulating this law. Some give it to Lord Hale, but the better opinion is that Lord Nottingham is its author. That it is regarded as a good law in principle is shown by the fact that its most impor tant provisions have been re-enacted in all Englishspeaking countries, especially the fourth and seventeenth sections of the statute.

§ 261. Provisions of the statute.-The fourth section provides that no action shall be brought whereby to charge: