As has been seen 47 an offer is a conditional promise; that is, a promise to take effect only if the exchange demanded for it is given. But the promise in an offer may be subject to other conditions than the giving of the requested consideration. Thus, an offer to insure property in exchange for a premium is a promise to pay insurance money in case the building insured is destroyed if a premium is paid. A conditional promise may be sufficient consideration, and "when a man acts in consideration of a conditional promise, if he gets the promise he gets all that he is entitled to by his act, and if, as events turn out, the condition is not satisfied, and the promise calls for no performance, there is no failure of consideration." 48

41Schoell v. Nell, 17 Ind. 29, 79 Am. Dec 453; Duttera v. Babylon, 83 Md. 536, 35 Atl. 64; Fischer v. Union Trust Co., 138 Mich. 612, 101 N. W. 852, 658 L. R. A. 987.

42Thompson v. Hudgins, 116 Ala. 93, '22 So. 632.

43Vehou v. Vehoa, 70 111. App. 40; Miwhinney v. Cassio, 63 N. J. L. 412, 43 Atl .676.

44Parish v. Stone, 14 Pick. 198, 25 Am. Dec. 378.

45 Conrad v. Manning, 125 Mich. 77, 83 N. W. 1038.

45aMartin's Estate, 131 Pa. St. 638, 18 Atl 987.

46.Supra, Sec. 4.

46La. Civ. Code, Art. 1896. "By the cause of the contract ... is meant the consideration or motive for making it." A promise to the creditor of another to pay the debt is held to require no other cause or consideration than the existence of the debt. New Orleans, etc., R. Co. v. Chapman, 8 La. Ann. 97.

47Supra, Sec.25.

48 Holmes, J, in Gutlon v. Marcus, 165 Mass. 335, 336, 43 N. E. 125.

So it was held in Ehlen v. Selden, 99 Md. 699, 69 Atl. 120, that where an agreement was made by which the plaintiff was to hold himself in readiness to lend the defendant money on.

It is of course as possible to make a gratuitous conditional promise as a gratuitous absolute promise, but the wording of a gratuitous conditional promise, is such that it may often easily be confused with an offer. Thus, if A promises to pay $5000 if B's house is burned down within a year, he has made a gratuitous conditional promise, and if B should burn the house or if it should be accidentally destroyed, A would not be liable on his promise because it was gratuitous. Yet the wording of A's promise is precisely similar to that of an offer, as if A promised to pay B $5000, if B would convey his house to A within a year. In theory it seems possible that any event may be named in a promise as the moment, on the happening of which a promisor (not as an exchange for the happening but as a mere coincidence in time), will perform a promise intended and understood to be gratuitous. The same thing, therefore, stated as the condition of a promise may or may not be consideration, according as a reasonable man would or would not understand that the performance of the condition was requested as the price or exchange for the promise. If a benevolent man says to a tramp,-"if you go around the corner to the clothing shop there, you may purchase an overcoat on my credit," no reasonable person would understand that the short walk was requested as- the consideration for the promise, but that in the event of the tramp going to the shop the promisor would make him a gift. Yet the walk to the shop is in its nature capable of being consideration. It is a legal detriment to the tramp to make the walk, and mortgage at any time between specified dates, and the defendant was to pay the plaintiff interest until the mortgage security was offered and the loan made, that the defendant was bound to pay interest between the dates specified although no money was ever borthe only reason why the walk is not consideration is because on a reasonable construction, it must be held that the walk was not requested as the price of the promise, but was merely a condition of a gratuitous promise. It is often difficult to determine whether words of condition in a promise indicate a request for consideration or state a mere condition in a gratuitous promise. An aid, though not a conclusive test in determining which construction of the promise is more reasonable is an inquiry whether the happening of the condition will be a benefit to the promisor. If so, it is a fair inference that the happening was requested as a consideration. On the other hand, if, as in the case of the tramp stated above, the happening of the condition will be not only of no benefit to the promisor but is obviously merely for the purpose of enabling the promisee to receive a gift, the happening of the event on which the promise is conditional though brought about by the promisee in reliance on the promise will not properly be construed as consideration.49 In case of doubt where the promisee has incurred a detriment on the faith of the promise, courts will naturally be loath to regard the promise as a mere gratuity, and the detriment incurred as merely a condition.50

So an agreement between the husbands of two sisters that they would divide evenly what they should receive from their father-in-law was enforced in Beckley v. Newland, 2 P. Wms. 182.

A bilateral contract of insurance or guarantee where no loss has occurred, presents the same point. The contract would be binding and the party insured or guaranteed would be liable in such a case to pay the agreed consideration or premium, however the circumstances against which he was insured or guaranteed might turn out. See also Vickrey v. Maier, 164 Cal. 384, 774, 129 Pac. 273, 276; Palmer v. Guillow, 224 Mass. 1, 112 N. E. 493. And a promise to pay freight whether goods are lost or not lost is binding though the goods are lost. National etc. Co. v. International Paper Co, 241 Fed. 861, 154 C. C. A. 563.

49 In Foster v. Dawber, 6 Exeh. 839, 819, in discussing the question whether there was evidence to go to the jury in support of a plea alleging a contract of accord and satisfaction, Parke, B., said; In order to support that plea, the defendant must show a bargain made with him, that as a consideration for Clark's giving up the two promissory notes, the defendant should purchase a piece of paper marked with a 10 a. receipt stamp, and write out a receipt upon it and suffer Clark to sign the same; and that the agreement between the parties was that 1000 should be paid for doing this. It is impossible to suppose that such was the real meaning of the parties. There is nothing in the nature of a bargain. . . . He directed the defendant to write out a receipt for such 1000 not by way of bargain that if he should do it he should have the promissory notes, otherwise not. . . . That was nothing more than a circumstance incident to the intended gift by the testator and the gift would have taken place just the same if Clark himself had to write out the receipt." The same idea is behind the words in Philpot v. Gruninger, 14 Wall. 570, 577, 20 L. Ed. 743. "Nothing is consideration that is not regarded as such by both parties." See also Fire Ins. Assoc, v. Wickham, 141 U. S. 564, 579, 35 L. Ed. 860, 12 8. Ct. 84; De Cicco a. Schweiser, 221 N. Y. 431, 117 N. E. 807; and cases cited infra, Sec.139.

50 Thus in Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q. B. 256, when a 100 reward was promised by the defendant company to any person who contracted influenza after having used one of the defendant's smoke

But in some cases it is so clear that a conditional gift was intended that even though the promisee has incurred detriment, the promise has been held unenforceable.51 balls according to directions, the court held that the use of the ball was consideration. It would seen) in fact that the purchase of the ball was the real consideration, if a consideration existed, and the use of the ball merely a condition. A more extreme case is De LaBere v. Pearson, Ltd., [1907] 1 K. B. 483, affd., (1906] 1 K. B. 280, stated supra, Sec. 32. A promise to pay a debt if the plaintiff make oath to its correctness was held an offer and binding on the oath being made, in Brooks v. Ball, 18 Johns. 337. See also 1 Via. Abr. 298, pl. 22; Seaward v. Lord, 1 Me. 163, 10 Am. Dec. 50. Cf. Mc-Bride v. Adams, 84 N. Y. S. 1060, where the promise of a husband to pay the debt of his wife when apprised of the amount, was held gratuitous and not an offer in consideration of information given. The facta in Devecmon v. Shaw, 69 Md. 199, 14 Atl. 464, 9 Am. St. Rep. 422, suggest the same question. An uncle promised to pay the expenses of his nephew's trip to Europe. The court held that the detriment incurred in making the trip to Europe was the consideration for the defendant's promise. As judgment had been given by default, however, and the question involved in the case was merely the assessment of damages, it seems that no larger question can have been really involved than whether the trip to Europe might be consideration for a contract, not whether it actually was. See further Dendy v. Russell, 67 Kans. 721, 74 Pac. 248; Howe v. Watson, 179 Mass. 30, 60 N. E. 415; Berry v. Graddy, 1 Met. (Ky.) 553; Bigelow v. Bigelow, 95 Me. 17, 49 Atl. 49; Steele v. Steele, 75 Md. 477, 23 Atl. 959; Adams v. Hon-ness, 62 Barb. 326; Stone v. Demarest, 95 N. Y. Misc. 543, 159 N. Y. S.

800; Richardson v. Gosser, 26 Pa, 335.

51 In Kirkaey v. Kirksey, 8 Ala. 131, the defendant wrote to his sister-in-law the plaintiff, who had recently lost her husband, that he felt grieved to hear of her condition and added "If you will come down and see me, I will let you have a place to raise your family, and I have more open land than I can tend; and on the account of your situation, and that of your family, I feel like I want you and the children to do well." The plaintiff on receiving this letter left her home and moved with her family sixty or seventy miles to the residence of the defendant, who gave her the use of a house and land for two years, but thereafter requested her to leave. The court held the promise a mere gratuity. The decision was followed in Forward v. Arm-stead, 12 Ala. 124; Bibb v. Freeman, 59 Ala. 612. In the latter case the court said: "It is often a matter of great difficulty to discern the line which separates promises creating legal obligations from mere gratuitous agreements. Each case depends so much on its own peculiar facts and circumstances that it affords but little aid in determining other cases of differing facts. The promise or agreement, the relation of the parties, the circumstances surrounding them, and their intent, as it may be deduced from these, must determine the inquiry, if the purpose is to confer on the promisee a benefit from affection and generosity, the agreement is gratuitous. If the purpose is to obtain a quid pro quo-if there is something to be received, in exchange for which the promise is given, the promise is not gratuitous, but of legal obligation." See also in accord, Beall v. Clark,

Sec.113. To Whom The Consideration Must More

It is well settled that whether a benefit to the promisor is or is not a sufficient consideration, a detriment to the promisee is. This is equivalent to saying that if the promisee parts with something at the promisor's request, it is immaterial whether the promisee receives anything, and necessarily involves the conclusion that the consideration given by the promisee for a promise need not move to the promisor, but may move to any one requested by the offer. The commonest illustration of consideration moving to another than the promisor is the consideration for a guaranty, and a mere reference to this class of cases is sufficient authority.52