This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
35Beland v. Brewing Association, 157 Mo. 593, 58 S. W. 1.
36 Wilkinson v. Oliveira, 1 Bing. (N. C.) 490; Fearnley v. Fearnley, 44 Colo,
While there was at one time a tendency to restrict the application of the rule requiring consideration to oral contracts, and to hold that this rule did not apply to written contracts by reason of the greater deliberation with which the latter were executed,39 it now is well settled that a written contract needs a valuable consideration,40 and that the principles of consideration apply alike to both kinds of contracts in the absence of statute. The Statute of Frauds requires written evidence, but it does not purport to do away with any of the elements of a valid contract. Accordingly, consideration is necessary, although the contract is one which, by the Statute of Frauds, must be proved by writing, and although it is actually reduced to writing.41 A written declaration of sale is unenforceable without consideration.42 A gratuitous written promise to keep an offer open for a specified length of time does not prevent the offeror from revoking such offer.43
There are, however, a number of promises to which legal effect is given, although they are not regarded as contracts, and, accordingly, consideration is not made a requisite. One who has been induced to enter into a contract through fraud,45 or misrepresentation,46 or undue influence,47 or duress,48 or one who has been induced to enter into a transaction by constructive fraud,49 may elect to disaffirm such contract or transaction, on the one hand, or to affirm it, on the other. If he elects to affirm the transaction, the transaction is thus rendered valid; and from the nature of his right to elect between affirming and disaffirming the contract, it is not necessary that there should be any additional consideration for his election to affirm. In a like manner, one who has been induced to enter into a so-called contract by reason of a mistake as to an essential element, may elect to accept the offer of the adversary party upon discovering the true state of facts.50 Such election is final and conclusive without any new consideration. From the nature of the original transaction, this is not a true case of ratification, although this name is often given to it.51
417, 98 Pac. 819; Spencer v. Potter's Estate, 85 Vt. 1, 80 Atl. 821.
37Pritchard v. Norton, 106 U. S. 124, 27 L. ed. 104; Mouton v. Noble, 1 La. Ann. 192; Causa and Consideration in the Law of Contracts, by Ernest G. Lorenzen, 28 Yale Law Journal, 621.
38 New Orleans, etc., Ry. v. Chapman, 8 La. Ann. 97; Pritchard v. Norton, 106 U. S. 124, 27 L. ed. 104.
39 See Sec. 511.
40 England. Rann v. Hughes, 7 T. R. (D. & E.) 350, note a.
Alabama. Brown v. Adams, 1 Stew. (Ala.) 51, 18 Am. Dec. 36.
California. Lewis v. Ogram, 149 Cal. 505, 10 L. R. A. (N.S.) 610, 87 Pac. 60.
Massachusetts. Thacher v. Dismore, 5 Mass. 299, 4 Am. Dec. 61.
Oklahoma. Zebold v. Hurst, - Okla. - , L. R. A. 1917F, 579, 166 Pac. 99.
Texas. Jones v. Holliday, 11 Tex. 412, 62 Am. Dec. 487.
Virginia. Beverleys v. Holmes, 18 Va. (4 Munf.) 95.
41 Rann v. Hughes, 7 T. R. (D. & E.) 350, note a; Wright v. Threatt, 146 Ga. 778, 92 S. E. 640.
42 Tiinmons v. Bostwick, 141 Ga. 713, 82 S. E. 29.
43 Kirby-Carpenter Co. v. Burnett, 144 Fed. 635.
44 See ch. LXXII.
45 See Sec. 354 et seq. 46See Sec. 378.
47 See Sec. 480.
48 See Sec. 506.
One who has entered into a contract which he may avoid, because of personal incapacity, such as an infant,52 an insane person,53 a drunkard,54 and the like, has the election to affirm such contract or to disaffirm it; and when he has exercised his election with full knowledge of the facts, such election is final. Accordingly, if such person elects to affirm the transaction, his election is final and conclusive without any new consideration.
Some forms of discharge, such as certain types of breach of the covenants of the contract,55 certain types of breach of express condition,56 and alteration,57 give to the party who is not in default and who is not guilty of any wrongful act, the right to treat the contract as discharged or as in full force and effect at his election. Such election to treat the contract in effect is final and conclusive, without a new consideration.
The extent to which the foregoing principles apply to waiver of demand and notice of a negotiable instrument by one who is entitled thereto, and who has been discharged by failure to make demand or to give notice, is a question upon which there has been a slight conflict of authority. While it is ordinarily said that an endorser is liable only upon condition of presentment, demand, and notice, it has, nevertheless, been held by the great weight of numerical authority that presentment, demand, and notice, are not conditions in the ordinary common-law sense; and that failure to make presentment and demand and to give notice, do not automatically discharge the indorser, but that they merely give him a defense which he may interpose at his election or which he may waive if he chooses to do so. In applying this principle, it has been held that after an indorser has been discharged by failure to present the negotiable instrument for payment, or to make demand therefor, or to give notice to him, he may, nevertheless, waive such presentment, demand, and notice; and that he may thus render himself absolutely liable without any new consideration.58 In a few strument from the party who was primarily liable thereon, the indorser was held to be discharged. Statements as to the effect of his waiver were therefore in part obiter.61