A defence given by the law to one promisor in a bilateral agreement enabling him at his option to avoid the whole agreement will not prevent his promise from being sufficient consideration for the counter-promise. This principle finds application in several classes of cases. A bilateral agreement between an infant and an adult though voidable by the infant is binding upon the adult.93 So a promise made by an insane made, if there is no obligation to receive the money, since by refusing to accept the money, the promisor of the annuity would by the terms of his promise escape any obligation to pay the annuity and he would incur no detriment by refusing to receive money to which he was not previously entitled. Montpelier Seminary v. Smith's Estate, 69 Vt 382, 38 Atl. 66. See also Olmstead v. Distilling Co., 77 Fed. 266, 267; Brown v. Brew, 99 Wash. 560, 169 Pac. 992; Wood v. Duff-Gordon, 177 N. Y. App. D. 624", 164 N.Y.S. 676. So an order given to seller's agent which by its terms makes the obligation of the seller to fill the order subject to the seller's approval, is a mere offer until the seller has given bis approval. Cooper Wagon & Buggy Co. v. Stedronsky Bros. Co., 24 S. Dak. 381,123 N. W. 846; Thomas Mfg. Co.v. Lyons, 29 S. Dak. 600, 137 N. W. 340, and see supra, Sec. 43. These principles seem to have been lost sight of in Thomas v. Thomas, 2 Q.B. 851. There the plaintiff in return for a promise to convey a life estate in a house, agreed to pay a portion of the ground rent and keep the premises in repair at all times during which she should have possession. As there was no promise on her part, and none could fairly be implied, that she should take possession or keep possession, it was wholly at her option whether she should incur any detriment or not. Remaining out of possession was no legal detriment since she had no right of possession at the time the agreement was made. The point was not raised, and the court held the agreement binding.
91 See supra, Sec. 46. But a promise by the seller of stock to repurchase it from the buyer for what the latter paid, if he at any time became dissatisfied, is supported by sufficient consideration if the buyer actually purchases the stock, Hills v. Hopp, (111. 1919), 122 N. E. 610, though a bilateral agreement to buy and sell which the buyer had a right to cancel at any time could be enforced by neither.
92 See supra, n. 89.
93Holt p. Ward Clarencieux, 2 Strange, 937; Warwick v. Bruce, 2 person (when promises made by such a person are voidable),94 or a promise of one who has been induced to enter into a bargain by fraud,95 or a promise unenforceable because within the Statute of Frauds and because the memorandum required by the Statute is signed by one party only,96 is sufficient to support a counter-promise. The same principle is involved where one promise only of a bilateral agreement is enforceable because of illegality,97 In most of these cases the right of the privileged party is to avoid the whole agreement, restoring the original status of both parties, but in case of infancy, and sometimes in other cases the privileged parly may avoid performance of his own promise though keeping the benefit of the performance of the other party.
M. & S. 206; Bruce v. Warwick, 6 Taunt 118; Harmon v. Harmon, 51 Fed. Rep. 113; Wright v. Buchanan OH., 1919), 123 N. E. 53; Johnson v. Rockwell, 12 Ind. 76,81; Allen v. Berry-Mi, 27 Iowa, 534, 1 Am. Rep. 309; Cannon v. Alsbury, 1 A. K. Marsh. 76, 10 Am. Dec. 709; Breckenridge v. Orawby, 1 3. J. Marsh. 236, 19 Am. Dec 71; Latrobe v. Deitrich, 114 Md. 8,22, 78 Atl. 983; Thompson v. Hamilton, 12 Pick, 425, 23 Am. Dec. 619; Atwell.v . Jenkins, 163 Man. 362, 40 N. E. 178, 28 L. R. A. 694, 47 Am. St. Sep, 463; Monaghan v. Agricultural Ins. Co., 53 Mich. 238, 243, 18 N. W. 797; Hunt v. Peake, 5 Cowen, 475, 15 Am. Dec. 475; Union Central Life Insurance Co. v. Hilliard, 63 Ohio St. 478, 491,59 N. E. 230, 81 Am. St. Rep. 644; O,Rourke v. John Hancock L. Ins. Co., 23 R. I. 457, 50 Atl. 834, 57 L. R. A. 496, 91 Am. St. Rep. 643.
94Harmon v. Harmon, 51 Fed. 113; Allen p. Berryhill, 27 Iowa, 634, 1 Am. Rep. 309; Atwell v. Jenkins, 163 Mass. 362, 40 N. E. 178, 28 L. R. A. 694, 47 Am. St Rep. 463.
95 Plympton v. Dunn, 148 Mass. 523, 527, 20 N. E. 180.
96Allen v. Bennett, 3 Taunt. 169; Thornton v. Ketnpoter, 5 Taunt. 786, 789; Laythoarp v. Bryant, 2 Bing. N. C. 735; Beckwith v. Clark, 188 Fed. 171,110 C. C. A. 207; Lee v. vaughan Seed Store, 101 Ark. 68,141 S. W. 496, 37 L R. A. (N. S.) 862; Cavanaugh v. Cesselman, 88 Cal. 643, 26 Pac. 515; Easton v. Montgomery, 90 Cal. 307, 27 Pac.280,25 Am. St. Rep. 123; Hodges v. Rowing, 68 Conn. 12, 18 Atl. 979, 7 L. R. A. 87; Perkins v. Hadsell, 50 111. 216; Shirley v. Shirley, 7 Blackf. (Ind.) 462; Burke v. Mead, 159 Ind. 262, 64 N. E. 880; Knapp v. Beach, 52 Ind. App. 573, 101 N. E. 37; Schaefer v. Whitham, 146 Ia. 64, 67, 124 N. W. 763; Engler v. Garrett, 100 Md. 387, 59 Atl. 648; Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 352; Old Colony R. R. Corp v. Evans, 6 Gray, 25, 66 Am. Deo. 394; Morin v. Marti, 13 Minn. 191; Ivory v. Murphy, 36 Mo. 534; Cunningham v. Williams, 43 Mo. App. 629; Moore v. Thompson, 93 Mo. App. 336, 348, 67 S. W. 680; Gartrell v. Stafford, 12 Neb. 545,11 N. W. 732, 41 Am. Rep. 767; Sabre v. Smith, 62 N. H. 663; Clason v. Bailey, 14 Johns. 484; McCrea v. Purmot, 16 Wend. 460, 30 Am. Dee. 103; Justice v. Lang, 42 N. Y. 493, 1 Am. Rep. 676; Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190; Lord v. Cronin, 154 N. Y. 172, 47 N. E. 1088; Case Threshing Machine Co. . Smith, 16 Or. 381, 18 Pac. 641; -Douglass v. Spears, 2 Nott. & McC. 207,10 Am. Dec. 588; Dyer v. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227, and see infra, Sec. 686. The cases of Houser v. Hobart, 22 Ida. 736, 127 Pac. 997, 43 L. R. A. (N. S) 410, and of Wilkinson v. Heavenrich, 58 Mich. 674, 26 N. W. 139, 55 Am. Rep. 708 (see also Willebrsndt v. Sisters of Mercy, 185 Mich. 366, 152 N. W. 85), are to the contrary, but in view of the great weight of opposing authority, cannot be supported.
The rule exemplified by these cases must be regarded as an exception to the general principles of consideration. This may readily be seen by supposing that the terms of a voidable obligation such as the law imposes on promisors of the classes just enumerated, be put in words and then made as a promise by an adult under no disability. It will be obvious that the promise is insufficient to support a counter-promise. Whether the infant's promise be translated as meaning-I promise to perform if I choose, or I promise to perform if I conclude to ratify, or I promise to perform unless I choose to avoid the whole agreement on both sides, in any event it is clear that the promise is illusory since its performance is by its very terms at the option of the promisor, and he can exercise this option without depriving himself of anything to which he was entitled before the formation of the agreement. The same line of argument is applicable to any voidable or unenforceable promise. That a promise which in terms reserves the option of performance to the promisor is insufficient to support a counter-promise is well settled.98 And the promise is no more effectual because the condition contained in it is in the form a condition subsequent rather than a condition precedent. As has been seen an agreement which one party reserves the right to cancel at his pleasure, cannot create a contract.99
97 See infra, Sec.Sec. 1630, 1631.
98 Roberts v. Smith, 4 H. & N. 315; Montreal Gas Company v. Vaeey,  A. C. 5SS; Oakland Motor Car Co. v. Indiana Automobile Co., 201 Fed. 499, 121 C. C. A. 319; Velie Motor Car Co. v. Kopmeier Motor Co.,
194 Fed. 324, 114 C. C. A. 234; Vogel v. Pekoe, 167 111. 339, 42 N. E. 386, 30 L. R. A. 491; Lydick v. Baltimore & Ohio R. Co., 17 W. Va. 427.
99 Velie Motor Car Co. v. Kopmeier Motor Co., 194 Fed. 324, 114 C. C. A, 284. See supra, Sec. 45.