Benefit and detriment have a technical meaning. Neither the benefit to the promisor nor the detriment to the promisee need be actual. "It would be a detriment to the promisee, in a legal sense, if he, at the request of the promisor and upon the strength of that promise, had performed any act which occasioned him the slightest trouble or inconvenience, and which he was not obliged to perform." 22 Thus abstaining from smoking and drinking, though in fact in the particular case a benefit to the promisee's health, finances and morals and of no benefit to the promisor is a legal detriment and if requested as such is sufficient consideration for a promise.23 So obtaining signatures to a petition is a sufficient consideration though the petition is so defective as to be useless and the signatures are, therefore, of no benefit to the promisor.24 Detriment, therefore, as used in testing the sufficiency of consideration means legal detriment as distinguished from detriment in fact. It means giving up something which the promisee had a right to keep or doing something which he had a right not to do.25 And benefit correspondingly must mean the receiving as the exchange for his promise of something which the promisor was not previously entitled to receive. That the promisor desired it for his own advantage and had no previous right to it is enough to show that it was beneficial. 26 If the promisor requested the act not for his own in the operation of their respective roads, which we are authorised to infer is in some measure due to the flagman employed, and gates erected in accordance with its terms."
22Bigelow v. Bigelow, 95 Me. 17, 22, 49 Atl. 49.
23 Hamer v. Sidway, 124 N. Y. 538, 27 N. E. 256, 12 L. R. A. 463, 21 Am. St. Rep. 693; Talbot v. Stemmons Ex'r, 89 Ky. 222, 12 8. W. 297, 25 Am. St. Rep. S31.
24 Corey v. Newton, 9 Col. App. 181, 48 Pac. 156.
24 This might not, however, be pushed to its ultimate logical extremity. Receiving a gift would probably not be held sufficient consideration to support a promise by the donor to make another. Hoffman v. Moreman, 184 Ala. 220, 63 So. 912; and see infra, Sec. 103d. n. Sed quaere, if the parties really intended a bargain.
26 Proof that the test is based on the previous legal right of the promisee to keep the consideration and of the promisor to receive it may be found in decisions holding payment of a debt, whether in fact advantageous to one party and detrimental to the other, no valid consideration for a promise, infra, Sec. 120; and likewise performance of duties imposed by contract, infra, Sec. 131, or by law, infra, Sec. 132, invalid advantage, but from a charitable desire to benefit a third person, it may be doubted whether there is such a benefit as the law requires. Thus if, as consideration of his promise, A requests B to perform a legal duty which B owes to C, and B docs so, it is insufficient consideration unless A requested the act for bis own advantage, not C's.27 The fact that performance of his own promise will benefit the promisor is immaterial. A promisor cannot give himself consideration for his own promise.28 It is probable also that no performance can serve as conas consideration. "If no benefit is received by the obligee except what he wan entitled to under the original contract, and the other party to the contract parts with nothing except what he has already bound for, there is do consideration." Feldman v. Fox, 112 Ark. 223, 164 S. W. 766, 767. The principle stated in the text is not infrequently lost sight of, and an inquiry made whether an act was detrimental in fact to the promisee or beneficial in fact to the promisor. See, e.g., Brawn v. Brew, 99 Wash. 660, 169 Pac. 992.
27 In the cases cited, infra, Sec. 131, which bold performance or promises of performance of a legal duty to a third person a sufficient consideration, there are expressions indicating that in the opinion of the court sometimes performance by B at A's request of B's legal duty to C, might be beneficial to A, and sometimes might not be.
28The error of such reasoning (for it can be considered nothing else) was committed in Union Bank v. Sullivan, 214 N. Y. 332, 108 N. E. 558. There the President and members of the Executive Committee of the bank gave their note to the bank for $175,000, in order that a loss of that amount which the bank had suffered might not be deducted from the apparent surplus in the bank's statement of its condition. The court said in support of its argument that the signers of the note had received sufficient consideration for their respective promises:- "Certainly those who became liable on the note secured a distinct benefit which accrued directly from the contract. Each share of stock which they held represented an aliquot part of the bank's assets and whatever increased the assets benefited the holders of the stock." It might be argued with equal force that a promise to buy property is binding without any promise to sell it, since if the promise is performed, the promisor will receive the benefit of the purchased property. A promise by a stockholder to make a present to a corporation is surely not binding, merely because a fraction of the gift will enure to his advantage in the increased value of his stock. The true analysis of the situation presented by the New York case is this: Mutual promises by A and B that each will make a gift to C, are binding. This is an ordinary case of a bilateral contract for the benefit of a third person. In the actual case the promises in question were not made by the promisors to one another but were made to the bank. In consideration of A's promise to the bank, B also promised to the bank. It is therefore a case where the consideration does not move from the promisee (see infra, Sec. 114), but where in other respects the usual requirements for the formation of contracts may be sideration if the promisee had no power to refrain from performing the act. This question can generally arise only where negative performance is requested. If the promisee refrains as requested, but could not, had he wished, have done otherwise, he has certainly incurred no detriment and can hardly be regarded as having conferred a benefit.29