The term, past consideration, or executed consideration, is self-contradictory. Consideration, by its very definition, must be given in exchange for the promise, or at least in reliance upon the promise. Accordingly, something which has been given before the promise was made and, therefore, without reference to it, cannot, properly speaking, be legal consideration. As a general principle this is well recognized and illustrations might easily be multiplied to show it. Thus a warranty made after a sale has been completed is invalid.59

Pac. 1137.) The circumstances might afford ground to question whether the promises to pay antecedent debts were in fact made for the consideration alleged, but this is a question of fact, and if the bargains were actually mode as stated, the law cannot inquire into the adequacy of the consideration. See infra, Sec. 115. The cases criticised must be distinguished from Wood v. Benson, 2 Or. &. Jervis, 94, and Rand v. Mather, 11 Cuah. 1, where the decisions related wholly to the enforceability of such agreements under the Statute of Frauds.

55Williston on Sales, {60S; Standard Cable Go. c Denver Electric Co., 76 Fed. 422, 22 C. C. A. 258, 39 U. S. App. 340; McCauley v. Ridgewood Trust Co., 81 N. J. L. 88, 79 Atl. 327.

56Lynch v. Murphy, 81 N. Y. Misc. 180, 142 N. Y. S. 373.

57 Turner v. Frazier, 157 Ky. 388, 163 S. W. 245.

57a Wcickgenant v. Eccles, 173 Mich. 696, 140 N. W. 613.

58Turman v. Smarr, 145 Ga. 312, 89 S. E. 214. And see cases cited infra, Sec.1441.

59 Roacorla v. Thomas, 3Q.B. 234; Dilworth v. Holmes Furniture Co., 183 Ala. 608, 62 So. 812; Kimbro v. Wells, 112 Ark. 126, 165 S. W. 645; Baldwin v. Daniel, 69 Ga. 782; Summers v. Vaughan, 35 Ind. 323, 9 Am. Rep. 741; Farmers' Assoc, v. Scott, 53 Kans. 534, 36 Pac. 978; White . Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. A. 592; Cady v. Walker, 62 Mich. 157, 28 N. W. 805, 4 Am. St. Rep. 834; In re

Similarly a guaranty made after the obligation guaranteed has been entered into is invalid without new consideration.80

A promise made, after a sale or a contract of service to pay a larger price than had been originally agreed upon,61 a promise by a lessor, after a lease has been entered into, to make repairs,62 or to abate a portion of the rent,63 a promise by a vendor to pay for a deficiency in the acreage of land sold as compared with what it was supposed to contain,64 are similarly invalid; and generally the doctrine that past consideration is no consideration is well recognized and universally enforced.65 This has been law from a very early day.66

62 Roehrs v. Timmons, 28 Ind. App. 578, 63 N. E. 481; King v. Cassell, 160 Ky. 637, 160 S. W. 682; Clyne v. Helmes, 61 N. J. L. 358, 39 Atl. 767. See also Avery v. Sawyer, 82 Conn. 560.

63 Goldsborough v. Gable, 140 111. 260,29 N. E. 722,16 L. R. A. 204.

64 Williams v. Hathaway, 10 Pick. 387; Smith v. Ware, 13 Johns. 257. But see Spear v. Griffith, 86 111. 552.

65 Hopkins v. Logan, 5 M. & W. 241; Roscorla v. Thomas, 3 Q. B. 234; Robinson p. Iron R. Co., 136 U. S. 522, 34 L. Ed. 276, 10 S. Ct. 907; Leverone v. Hildieth, 80 Cal. 139, 22 Pac. 72; Martin v. Stubbings, 20 111. App. 381; Davidson v. King, 51 Ind. 224; Griffin v. Hour, 105 Ia. 499, 75 N. W. 372; Caldwell v. Felton (Ky.), 51S. W. 575; Stevens v. Mayberry, 82 Me. 65, 19 Atl. 02; Moore v. Elmer, 180 Mass. 15, 61 N. E. 259; Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306, 70 N. E. 202; Widiman v. Brown, 83 Mich. 241, 47 N. W. 231; Turle v. Sargent, 63 Minn. 211, 65 N. W. 349, 66 Am. St. Rep. 475; Pike v. Van Riper, 57 N. J. L. 290, 30 Atl. 529; Guillaume v. General Transportation Co., 100 N. Y. 491, 3 N. E. 489; Randall v. Simmons, 134 N. Y. S. 523; Roberts v. First Nat. Bank, 8 N. D. 474, 504, 79

Rohrig, 176 Mich. 407,142 N. W. 561; Fletcher v. Nelson, 6 N. Dak. 94, 69 N. W. 53; Morehouse v. Comstock, 42 Wis. 626. So a warranty which has lapsed because of the failure of the buyer to comply with its terms cannot be subsequently renewed without new consideration. Walters v. Akers, 31 Ky. L. Rep. 259,101 S.W. 1170. It is sometimes said that a warranty given before the property in the goods has passed is binding. Douglass v. Moses, 89 Iowa, 40, 66 N. W. 271, 48 Am. St. 363; Bowen v. Zaccanti, (Mo. App. 1919), 208 S. W. 277; or if given before delivery of the goods. Webster v. Hodgkins, 25 N. H. 128. But such statements are erroneous. The question is whether the warranty was given before the seller was bound to accept title and delivery. See 17 Mich. L. Rev. 519.

60 Richardson v. Fields, 124 Ala. 535, 26 So. 981; Summers v. Heard, 66 Ark. 550, 50 S. W. 78, 51 S. W. 1057; Grob v. Gross, 83 N. J. L. 430, 84 Atl. 1064; Teele v. Mayer, 173 N. Y. App. D. 689, 160 N. Y. S. 116; In re Goddard's Estate, 66 Vt. 415, 29 Atl. 634.

61 Howard v. McNeil, 25 Ky. L. Rep. 1394, 78 S. W. 142; Hill v. Granat, 134 N. Y. S. 529.

66 Jeremy v. Goochman, Cro. Eliz. 442; Barker v. Halifax, 2 Cro. Eliz. 741; Docket v. Voyel, 2 Cro. Elis. 885.

In several classes of cases, however anomalously, a past consideration has been regarded formerly by the law as sufficient consideration, and at the present time in some of these classes at least, the early law still persists. These classes may be stated as follows, though the boundaries between the groups are not always distinctly marked:

(1) Promises to pay a precedent debt;

(2) Promises in consideration of some act previously done by the promisee at the request of the promisor;

(3) Promises where past circumstances create a moral obligation on the part of the promisor to perform his promise. Under this head may be included cases of ratification and adoption of promises previously made for sufficient consideration but invalid when made for lack of authority or capacity. These groups may be separately considered.