What have already been referred to as illusory promises are insufficient consideration.78 Such a promise is a promise merely in form. Even if recognized by law it would impose no obligation, since the promisor by virtue of the condition always has it in his power to keep his promise and yet escape performance of anything detrimental to himself or beneficial to the promisee. Such a condition is called in the Civil Law a potestative condition.79 The insufficiency of such a promise as consideration is most commonly illustrated in agreements to buy or sell goods where the quantity is fixed by the wishes of one of the parties. A promise to buy such a quantity of goods as the buyer may thereafter order,80 or to take goods in such quantities "as may be desired," or as the buyer "may want"81 is not sufficient consideration since the buyer may
77 See Holmes, Common Law, 299. The distinguished author's extension of the latter construction to all contracts seems erroneous. It is merely a question of fact whether a promisor agrees to "take the risk" of an event happening (that is to pay for the consequences if it does not happen) or agrees to cause it to happen. See infra, Sec. 130.
78See supra, Sec.Sec. 37-49.
79 New Iberia Sugar Co. v. Lagarde, 130 La. 387, 58 So. 16.
80Great Northern Ry. Co. v. Wit-ham, L. R. 9 C. F. 16; Cold Blast Transportation Co. v. Kansas City
Bolt Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 696; T. B. Walker Mfg. Co. v. Swift, 200 Fed. 529,119 C. C. A. 27; Las Palmas Winery v. Garrett, 167 Cal. 397,139 Pac. 1077. See also Gross v. Stumpier, 165 N. Y. S. 214. See also Pratt Consolidated Coal Co. v. Short, 191 Ala. 378, 68 So. 63; Buick Motor Co. v. Thompson, 138 Ga. 282, 75 S. E. 354.
81 American Cotton Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540; Columbia Wire Co. p. Freeman Wire Co., 71 Fed. 302; Higbie v. Rust, 211 111. 333, 336, 71 N. E. 1010; Parks v. Griffith ft Boyd Co., 123 Md. 233, 91 Atl. 681; refrain from buying at his option and without incurring legal detriment himself or benefiting the other party.82
It was held in an early Minnesota case that as agreement to sell all that the buyer might require or want in his business was open to the same objection, though the buyer promised to buy all he should require; 83 but the weight of authority is clearly otherwise,84 and rightly. Though it may be true clearly requires that construction, but will rather seek to find the more reasonable intention that the seller has agreed to sell and the buyer to take the buyer's normal or ordinary needs, subject to the slight variation of a business continuing on substantially the same scale,86 yet if the wider power is given, the contract is not without sufficient consideration.87
Rafolovitz v. American Tobacco Co., 73 Hun, 87, 29 Abb. N. C. 408, 25 N. Y. 3.1036; Hoffman v. Maffioli, 104 Wis. 630, 80 N. W. 1032, 47 L. R. A. 427; Texas Produce Exchange v. Sorrell (Tex. Civ. App.), 168 S. W. 74. See also Hazelhurst Lumber Co. v. Mercantile etc. Co., 166 Fed. 191. It will be noticed that such words as "may want "are somewhat ambiguous, If they mean "may need in his busi-ness" or even if they mean all that the buyer may choose to buy of the kind of goods in question from any source, there is a contract. See following notes.
82Other illustrations of this principle may be found in Harvester King Co. .. Mitchell, etc., Co., 89 Fed. 173; Wagner v. Meakin, 92 Fed. 76, 33 C. C. A. 677; Ellis c. Dodge, 237 Fed. 860; Morrow v. Southern Express Co., 101 Ga. 810, 28 S. E. 998; Chicago, etc, Ry. Co. v. Jones, 53 111. App. 431; Missouri, etc., Ry. v. Bagley, 60 Kane. 424, 56 Pac. 759; Clark v. Bankers Trust Co., 177 N. Y. App. D, 627,164 K. Y. S. 544.
83 Bailey v. Austrian, 19 Minn. 535. See also Cool v. Cuningham, 25 S. Car. 136.
84Church v. Proctor, 66 Fed. 240, 13 C. C. A. 426 (contract to buy what buyer required in his business); Lou-denback Fertiliser Co. p. Tennessee Phoshpate Co., 121 Fed. 298, 68 C. C. A. 220,61L. R. A. 402 (contract to buy buyer's "entire consumption" of phosphate rock); Klipstein v. Allen, 123 Fed. 992 (contract to buy all quebracho needed for buyer's factory); T. B. Walker Mfg. Co. v. Swift, 200
Fed. 529, 119 C. C. A. 27, "We take care of buyer's needs this year"); Jenkins v. Anaheim Sugar Co., 247 Fed. 958, 160 C. C. A. 658, L. R. A. 1918 E,293 (contract to buy and sell buyer's "August requirements"); National Furnace Co. v. Keystone Mfg. Co., 110 111. 427 (contract to buy all iron buyer should use, need, or consume in his business); Minnesota Lumber Co. v. Whitebreast Coal Co., 160 111. 85, 43 N. E. 774, 31 L. R, A. 529 (contract to buy buyer's "requirements of coal"); Warden Coal Washing Co. v. Meyer, 98 111. App. 640 (contract to give buyer's "trade"); Smith v. Morse, 20 La. Ann. 220 (contract to buy all ice buyer required for his hotel); Parks v. Griffith & Boyd Co., 123 Md. 233, 91 Atl. 581 (contract to buy such goods as might be needed in an established business); Ziehm v. Frank Steil Brewing Co., 131 Md. 582, 102 Atl. 1005 (contract to use seller's beer exclusively); Burgess Fibre Co. v. Broomfield, 180 Mass. 283, 62 N. E. 367 (contract to buy all iron which seller might desire to sell); Cooper v. Lansing Wheel Co., 94 Mich. 272, 54 N. W. 39, 34 Am. St. Rep. 341 (contract to buy all wheels buyer might "want" during ensuing season); Hie-key v. O'Brien, 123 Mich. 611,82 N. W. 241, 49 L. R. A. 594, 81 Am. St. Rep. 227 (contract to buy all ice necessary to carry on buyer's business); Dailey Co. v. Clark Can Co., 128 Mich. 591, 87 N. W. 761 (contract to buy all the cans buyer should use in its factory); Ames Brooks Co. v. Aetna Ins. Co., 83 Minn. 346, 86 N. W. 344 (contract that a seller by ceasing to manufacture may relieve himself from any performance and still keep a promise to sell all the goods he manufactures, and similarly a buyer by going out of business may avoid performance while still observing the terms of an agreement to buy all that he requires, these results can be obtained only by doing something which is in itself a legal detriment, namely, the cessation of business. Even a promise to buy or sell only as much as the promisor chooses is a sufficient consideration when coupled with the agreement that whatever the buyer or seller chooses to buy or sell he will buy from or sell to the promisee. To put the matter in another way-the promise of a seller not to manufacture except for the buyer, or the promise of a buyer not to buy except from a particular seller, is clearly a promise to do something detrimental. A few cases85 seem to admit that though a contract to buy and sell the requirements or output of a particular factory is a valid contract, an agreement which gives the buyer an option to take no goods is invalid, although the buyer agrees that if he should buy any goods of the kind in question from any one he would buy them from the seller.
These decisions cannot be supported. Though a court will be reluctant to give a contract a construction which gives the buyer so wide a power unless the language of the contract for a shipper's "insurance business" for a season); Miller v. Leo, 36 N. Y. App. Div. 589, 56 N. Y. S. 165, affd., without opinion, 165 N. Y. 619, 59 N. E. 1126 ("necessary brick, lime, and cement which I may require at my two jobs"); Asahel Wheeler Co. v. Men-dleson, 180 N. Y. App. D. 9, 167 N. Y. S. 435 (contract by buyers for "their supply" of certain drugs). East v. Cayuga Lake Ice Line, 21 N. Y. S. 887 (contract for all ice buyer might require in his business).
85Crane v. Crane, 105 Fed. 889, 45 C. C. A. 96 (an agreement to buy and sell what a retail merchant, "should require for his trade" was held bad because the retail merchant could increase or diminish his orders as fluctuations in the price at which he could sell made desirable); Jenkins p. Anaheim Sugar Co., 237 Fed. 278 (rev'd, 247 Fed. 958,160 C. C. A. 658, L. R. A. 1918 E, 293); Huggins v. Southeastern Lame & Cement Co., 121 Ga. 311, 48 S. E. 933 (an agreement that certain cement should be sold exclusively through the buyer's agency was held invalid since the buyer need take none). See also Long Syrup Refin. Co. v. Corn Products Refin. Co., 193 Fed. 929, 113 C. C. A. 557; Pitta-burgh Plate Glass Co. v. H. Neuer Glass Co., 253 Fed. 161, 165 C. C. A. 61; Simpson v. Sanders, 130 Ga. 265, 60 S. E. 541.
The same principles may be involved in contracts to employ. The promise of either party may be optional, if the exercise of the option not to employ or to serve involves a detriment to the promisee, or benefit to the promisor.88 But a promise to employ as long as it suite the employer is insufficient consideration.89 And in any case where a promise in terms or in effect provides that the promisor has a right to choose one of two more alternatives, and by choosing one will escape without suffering a detriment or giving the other party a benefit, the promise is insufficient consideration.90 The same
86Weils v. Alexandre, 130 N. Y. 642, 29 N. E. 142; New York Central, etc., Co. v. United States Radiator Co., 174 N. Y. 331, 66 N. E. 967; Moore v, American Molasses Co., 179 N. Y. App. Div. 605, 166 N. Y. Supp. 4.
87 Ramey Lumber Co. v. John Schroe-der Lumber Co., 237 Fed. 39, 150 C. C. A. 241; Burgess Fibre Co. v. Broomndd, 180 Mass. 283, 62 N. E. 387; Vickrey p. Maier, 164 Cal. 384, 774, 129 Pac 273, 276. Also cases cited supro, n. 83.
88In McMullan c. Dickinson Co., 63 Minn. 405, 65 N. W. 661, the promise was to employ for the "period of lime during which the corporate business might be carried on." This promise of employment was rightly held sufficient consideration since though the corporation might at will cease to do business, this in itself would be a legal detriment. So in Shaw v. Hudson Engineering Co., 155 Ky. 4, 159 8. W. 653, a contract to employ for so long a time as the employer should use certain patent rights assigned to it by the employee was upheld. See also
Wood v. Duff-Gordon, 177 N. Y. App. D. 624, 164 N. Y. S. 576.
89 Gulf, etc., R. Co. v. Winton, 7 Tex. Civ. App. 57, 26 S. W. 770; Missouri, etc., R. Co. v. Smith, 98 Tex. 47, 81 8. W. 22, 66 L. R. A. 741, 107 Am. St. Rep. 607.
90 Thus, though a promise to extend an interest-bearing debt for a fixed period is supported by the debtor's promise to pay interest for that period, the promise of extension would be without valid consideration if the debt was not interest bearing or if the period of the extension was terminable at the debtor's option. A promise to pay interest during such time as the debtor may choose to delay payment, where it is left optional with the debtor to pay whenever he choose, may be performed without new legal detriment by the immediate payment of the debt. McManus v. Bark, L. R. 5 Exch. 65; Austin Real Estate Co. v. Balm, 87 Tex. 582, 29 8. W. 646. So a promise to pay a sum of money is not supported by a promise to pay an annuity after the payment has been consequence follows where a bilateral agreement in question expressly reserves to one party the right of immediate cancellation at any time.91 On the other hand, if the performance of every alternative open by the terms of a promise involves a detriment, the promise will be a valid consideration.92