As has already been seen 34 a conditional promise may be sufficient consideration. The performance of such a promise does not necessarily involve a detriment since the condition upon which any action is to take place may not happen. But the possibility that the condition may happen, involves a chance of detriment which is sufficient to make the promise valid consideration. If, however, a condition in the promise relates to a matter which has already happened so that if the truth were known to the parties it would be apparent that the promisor really bound himself for nothing, it may be urged that the promise is insufficient consideration. For instance, the buyer and seller, for a lump price of a tract of land supposed to contain a certain number of acres may mutually agree that if the amount of land in the tract is less than was supposed when the sale was made, a deduction shall be made in the price for each acre of deficiency; while if the amount of land in the tract exceeds what had been understood, a corresponding increase for each added acre shall be made. On a survey being made the tract proves larger than had been supposed. In actual fact, therefore, the seller in promising to pay for a possible deficiency promises nothing, since there was no deficiency. Nevertheless on these facts, it was held that the buyer's promise to pay for the excess was supported by sufficient consideration.35 So it has been held that where several heirs agreed after a relative's death but before the contents of his will were known, that whatever the terms of the will they would divide the estate evenly, the agreement was held binding, although in actual fact those who received under the will less than a ratable share were promising nothing in return for the promises of those who under the will would take more than a ratable share to surrender some portion to the others.36 So a wager on an unknown past event aside from the defence of illegality (which would now invalidate the agreement) 37 is a valid contract; 39 and other decisions to the same effect might be added.19
32 Bryant's Pond Steam Mill Co. v. Felt., 87 Me. 234, 32 Atl. 888, 33 L. R. A. 503, 47 Am. St. Rep. 323; Hudson Real Estate Co. v. Tower, 156 Mass. 82, 30 N. E. 465, 161 Maw. 10, 36 N. E. 680, 42 Am. St. Rep. 379; Plank's Tavern Co. v. Burkhard, 87 Mich. 182, 49 N. W. 662; Badger Paper Co. d. Rose, 95 Wis. 145, 70 N. W. 302, 37 L. R. A. 162; Providence, etc., Co. v. Kent, etc., Co., 19 R. 1. 561, 35 Atl. 162; cf. Jamestown Portland Cement Corp. v. Bowles, 228 Mass. 176, 117 N. E. 41. In Pennsylvania it is held that a subscriber may withdraw only prior to the time when articles of incorporation are ready for filing. Auburn, etc., Works v. Shulta, 143 Pa. 256, 22 Atl. 904. And a few decisions seem to hold that after expense has been incurred in reliance upon the subscription, withdrawal cannot be made. Cook v. Chittenden, 25 Fed. 544; Lewis v. Hillsboro, etc., Co. (Tex.}, 23 8. W. 338; Patty v. Hillsboro, etc., Co., 4 Tex. Civ. App. 224, 23 S. W. 336. It has also been held that in no case after several subscriptions have been made, can one subscriber withdraw without consent of the others, each subscriber being treated as contracting with the other subscribers. Nebraska, etc., Co. v. Lednicky, 79 Neb. 587, 113 N. W. 245.
34 Supra, Sec. 112.
It is believed that these decisions are sound in principle. The law looks at the matter not from the standpoint of universal intelligence but from the standpoint of the parties, and as the law is made for man, and not man for the law, this is the only proper attitude. From the standpoint of the parties in the cases referred to above, the risk is as real where the contingency has already happened, but is unknown, as is the case where the contingency has not yet happened. This is not saying that anything is detrimental which the parties think detrimental, but only that where on the facts known at the time of the bargain any reasonable person would think a detriment or a possible detriment was promised, the consideration is valid.
35 Seward v. Mitchell, 1 Coldw. 87.
36Supreme Assembly v. Campbell, 17 R. I. 402. See also Minehanc Hill, 144 N. Y. App. D. 864, 129 N. Y. 8. 873.
37 See infra, Sec. 1668.
38 Sheppard, Actions (2d ed.), 178; March v. Figot, 5 Burroughs, 2802.
39 Buraum v. Barnum, 8 Conn. 469, 21 Am. Dec. 689; Rothrock v. Perkin-son, 61 Ind. 39; Howe v. O'Mally, 1
Murphy, 287, 3 Am. Dec. 693; Kennedy's Ex. v. Ware, 1 Pa. St. 445, 44 Am. Dec. 145. See also Beckley v. Newland, 2 P. Wms. 182; McEIvain v. Mudd, 44 Ala. 48, 4 Am. Rep. 106; Gurry v. Davie, 44 Ala. 281; Pool v. Docker, 92 111. 501. Cf. Walker v. Walker, Holt, 328, 5 Mod. 13; Harding v. Walker, Hempst. 53; Smith v. Knight, 88 Ia. 257, 55 N. W. 189.