64 See Smith v. Algar, 1 B. & Ad. 603; Mascolo v. Montesanto, 61 Conn. 60, 23 Atl. 714, 29 Am. St. Rep. 170; and infra Sec. 135.
65 Bates v. Sandy, 27 111. App. 552; Herbert v. Mueller, 83 111. App. 391;
Anderson v. Nystrom, 103 Minn. 168,
114 N. W. 742, 13 L. R. A. (N. S.)
1141,123 Am. St. Rep. 320. 66See infra, Sec. 132. 67Forth v. Stanton, 1 Sound. 210;
Will v. Hammond, 179 Mo. App. 406.
165 S. W. 362. See also Hoffman v. Moreman, 184 Ala. 220, 63 So. 942.
68Foster v. Dawber, 6 Exch. 839, 851; Williams v. Stern, 5 Q. B. D. 409; Westmoreland v. Porter, 75 Ala. 452; Crawford v. Millspaugh, 13 Johns. 87; Kidder v. Kidder, 33 Pa. 268; and see infra, Sec. 1829.
69Professor Ballantine, 11 Mich. L. Rev. 427.
70 See, however, infra, Sec. 123.
though general, that mutual promises are binding which promise some act or forbearance, which would itself be sufficient consideration, is not universal. There are other reasons besides lack of consideration which make promises void-notably lack of capacity. The qualification which thus must be made to the definition of consideration in bilateral contracts is as essential to Professor Langdell's definition as to Leake's. Both definitions propose a general test to determine when mutual promises are binding; and neither test can be applied successfully where the promisor wholly lacks capacity, or where for any other reason than lack of consideration the promise is void.71 For the same reason a promise in a bilateral agreement which is void for lack of a proper counter-promise to serve as consideration, is itself insufficient consideration, since it is not binding, and is therefore valueless. This is an obvious consequence of the requirement of consideration in bilateral contracts. The principle is ordinarily stated in the axiom that in a bilateral agreement both promises must be binding or neither is binding.72 In recent years in a few States this application of the law of consideration has sometimes been referred to as if based on some special requirement of "mutuality," but no other doctrine than that of consideration is involved.73