It is no objection to the sufficiency of consideration that much of what was requested and given as such would be insufficient to support a contract. If a legal detriment to the promisee or benefit to the promisor is given, the consideration is valid though much also was requested and given which was neither detrimental to the one, nor beneficial to the other.70 It should be observed, however, that though a portion of the consideration requested would be in itself of no validity as consideration to support a promise, that portion must nevertheless be given in order to create a contract, otherwise mutual assent would be lacking. If A says to B, I will give you a horse if you will pay the debt you owe me and do a specified piece of work, B's payment of the debt is of no validity in itself as consideration, but mutual assent would be lacking unless the debt was paid as well as the specified work done. Consideration which is merely void or invalid must be distinguished from consideration which is positively illegal. If consideration is even partially illegal the whole agreement is tainted unless the legal portion of the agreement is severable.71 Somewhat analogous to consideration void in part is the case of a promise based partly on moral obligation or motive of generosity, as where a sum is promised in return for past as well as present consideration; or partly in return for services and, confessedly, partly as a gift. If one undivided sum is thus promised, the promise is supported by valid consideration.72
68Talbott v. Stemmons' Ex'r, 89 Ky. 222,12 S. W. 297,25 Am. St. Rep. 531; Lindell v. Rokes, 60 Mo. 249, 21 Am. Rep. 395. See also Homer v. Sidway, 124 N. Y. 538, 27 N. E. 266, 12 L. R. A. 463,21 Am. St. Rep. 693.
69Jamieson v. Renwick, 17 Vic. L.
Rep. 124; Dunton v. Dunton, 18 Vic. L. Rep. 114, 134.
70Bradburne v. Bradburne, Cro. Elk. 149; King v. Sears, 2 C. M. & R. 48; Ensign v. Coffelt, 102 Ark. 60S, 145 S. W. 231; Cobb v.. Cowdery, 40 Vt. 25, 94 Am. Deo. 370; Ridlon v. Davis, 51 Vt. 457.
Sec. 135. Forbearance or promise of forbearance as consideration. The early English law apparently made no distinction in regard to the sufficiency of a claim which the claimant forbore to prosecute, or promised to forbear to prosecute, as the consideration of a promise, other than the broad distinction between good and bad claims. The forbearance or promise to forbear to prosecute an unfounded claim was insufficient consideration.73 Such decisions necessarily involve the principle that the forbearance to prosecute an unfounded claim is no legal detriment. It is obvious that a claimant whether his claim is well or ill founded, has the actual power to prosecute his claim at law, but in spite of this power he was regarded by the law as under a duty of imperfect obligation to refrain from prosecuting an action if his claim was unfounded. In the early part of the nineteenth century an advance was made from the position of the earlier authorities, and it was held that forbearance to prosecute a suit which had been already instituted was sufficient consideration without inquiring whether the suit would have been successful or not.74 The case is ordinarily cited for the proposition that forbearance of a doubtful claim is good consideration. Such a rule necessarily implies that a claimant whose claim is doubtful, whether in fact or law, has a right recognized by law to continue a prosecution which has been begun; and probably at the present time every court would admit this to be true, and hold further that forbearance or a promise to forbear suit upon a doubtful claim is sufficient consideration whether suit has or has not previously begun.75 What constitutes a doubtful claim within the meaning of this rule,, however, is not always easily defined. The most recent English cases have gone still further and held that if a claim is honestly, asserted and is "reasonable" or is "not vexatious and frivolous," the forbearance or the promise of forbearance to prosecute the claim is valid consideration.76 It is sometimes supposed that the test is made to depend wholly on the honesty of the claimant, but the decisions seem also to require something of reasonableness in the claim. Whether the test of reasonableness is based on the intelligence of the claimant himself, who may be an ignorant person with no knowledge of law, and little sense as to facts, is not so clear, but probably the claim forborne must be neither absurd in fact from the standpoint of a reasonable man in the position of the claimant, nor, obviously unfounded in law to one who has an elementary knowledge of legal principles.77 Whatever the rule may be in this respect there is able to attempt the enforcement of an obviously unreasonable or frivolous claim, irrespective of the claimant's good faith, surrender of such a claim will never be sufficient consideration.
71In Cobb v. Cowdery, 40 Vt. 26,28, 94 Am. Deo. 370, the court refers to "The general principle . . . that if part of a consideration be merely void, the contract may be supported by the residue of the consideration, if good per 36; Bradburne v. Bradburne, Cro. Elk. 149; Tiadale's Case, Cro. Elis. 758; Crisp v. Gamel, Cro. Jac. 128; but if any part of a consideration be illegal, it vitiates the whole, Feather-ston v. Hutchinson, Cro. Eliz. 199; Bridge v. Cage, Cro. Jac. 103; Scott v. Gilmore, 3 Taunt. 226; Woodruff v. Hinman, 11 Vt. 592; 2 Saund. R. (Pat-teson & Wms, ed.), 136, n. 2." So a covenant under seal based on consideration which is illegal or opposed to public policy is as invalid as if the promise were parol.
See infra, Sec. 1780.
72 Parke, etc., Co. v. San Francisco Bridge Co., 145 Cal. 634, 78 Pac. 1065; Irwin v. Locke, 20 Colo. 148, 36 Pac. 898; Fisk, etc., Co. v. Reed, 32 Colo. 506,77 Pac. 240; Reisler v. Silbermintz, 99 N. Y. App. Div. 131, 90 N. Y. S. 967; Foxworthy v. Adams, 136 Ky. 403, 124 S. W. 381, 27 L. R. A. (N. S.) 308. See also infra, Sec. 141.