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.
The examples of benefits or detriments thus far given have been rights involving property directly or indirectly. Consideration, however, is not necessarily limited to rights of this kind. Any forbearance of any legal right is a consideration, though it may not and can not involve financial loss to the party forbearing, or financial gain to the other.1 Even if the forbearance may be shown to be really beneficial to the party who forbears the right, the forbearance is, nevertheless, a consideration.2 Thus a waiver of the right to use tobacco,3 or to drink liquor, use tobacco, swear or play cards,4 or to abstain from the use of intoxicating liquor;5 a waiver by a parent of the right to name a child;6 surrender of the control of a child7 attending a university;8 a promise by a child not to move
8 Powell v. Union Pacific Railroad Co., 255 Mo. 420, 164 S. W. 628.
9 Lay v. Brown, 106 Ark. 1, 151 S. W. 1001. See Sec. 876 et seq.
10 Burnett v. Marrs, 62 Or. 598, 125 Pac. 838.
1Reed v. Golden, 28 Kan. 632; Gardner v. Denison, 217 Mass. 492, 51 L. R. A. (N.S.) 1108, 105 N. E. 359; Skagit State Bank v. Moody, 86 Wash. 286, L. R. A. 1916A, 1215, 150 Pac. 425.
2 01es v. Wilson, 57 Colo. 246, 141 Pac. 489; Dendy. v. Russell, 67 Kan. 721, 74 Pac. 248.
3 Talbott v. Stemmons, 89 Ky. 222, 25 Am. St. Rep. 531, 5 L. R. A. 856, 12 S. W. 297.
4Hamer v. Sidway, 124 N. Y. 538, 21 Am. St. Rep. 693, 12 L. R. A. 463, 27 N. E. 256.
5Lindell v. Rokes, 60 Mo. 249, 21 Am. Rep. 395.
6 Indiana. Wotford v. Powers, 85 Ind. 294, 44 Am. Rep. 16; Diffenderfer v. Scott, 5 Ind. App. 243, 32 N. E. 87.
Iowa. Daily v. Minnick, 117 la. 563, 60 L. R. A. 840, 91 N. W. 913.
Massachusetts. Eaton v. Libbey, 165 Mass. 218, 52 Am. St. Rep. 511, 42 N. E. 1127; Gardner v. Denison, 217 Mass. 492, 51 L. R. A. (N.S.) 1108, 105 N. E. 359.
Vermont. Parks v. Francis, 50 Vt. 626, 28 Am. Rep. 517.
7Oles v. Wilson, 57 Colo. 246, 141 Pac. 489; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881.
So where the mother of an illegitimate child, who has the exclusive right to its custody, surrenders it to its putative father. Berge v. Hiatt, 82 Ky. 666, 56 Am. Rep. 912; Story v. Story (Ky.), 62 S. W. 865. So a father's consent to the marriage of his minor daughter is a consideration. Henry v. Dussell, 71 Neb. 691, 99 N. W. 484.
8Hoshor v. Kautz, 19 Wash. 258, 53 Pac. 51. (Consideration for a promise by A to pay B a certain sum each year that B attends.) away;9 .mutual agreements among merchants to close their stores at six-thirty P. M.,10 are all considerations. A surrender by A of the custody of his child, B, to X, is a consideration for a promise by X to A to devise certain property to B.11 While the courts usually assume that the surrender of the custody of a child is a sufficient consideration,12 there are two difficulties in the way of accepting this view. One is that in many of these cases the surrender of the custody of the child is really intended as an act of charity to the parent of the child, and the promise to devise property to such child is intended as a further gratuitous promise. If the surrender of the custody of the child is a sufficient consideration, it is a consideration which moves from the promisor, and we have a case where one gratuitous promise is a consideration for a second gratuitous promise made by the same promisor. The courts, however, are able to avoid this objection if they can find that the promisee surrendered a legal right in giving up the custody of such child, since the surrender of a legal right is a consideration, whatever the real motive of the parties may be. The difficulty, however, is in finding that the promise of the parent with reference to the custody and control of the child is a valid promise to surrender any legal right. It seems to be held, in most jurisdictions,18 that the contract for the custody of the child is not enforceable as an ordinary contract, but that if questions as to the custody and control of the child arise, the welfare of the child will be regarded by the court without much regard to the contract between the parties, except so far as the contract is one of the surrounding facts in determining what is for the welfare of the child. At the same time, the courts have ordinarily held such promise for the custody of the child to be a sufficient consideration. A contract by which A, the mother of an illegitimate child, agreed to surrender such child to B, in consideration of B's promise to support such child and to relieve A from all expense therefor, has been held to be unenforceable on the ground that A could not transfer to B the obligations toward such child which the law imposed upon A; and, accordingly, A could not maintain an action against B for breach of such contract.14 A's act in attempting to prevent C from remaining intimate with certain women who probably were immoral, and from marrying one of them, is sufficient consideration for B's promise to divide with A whatever legacy B might receive from C.15 A change of residence,16 such as a promise by one who has been intimate with a married woman beyond the limits of propriety, though not of morality, to influence her to return to her husband, and for himself to leave the country,17 may be a consideration. If A agrees to convey land to B, in consideration of B's moving upon such land and taking possession thereof, such act on B's part is sufficient consideration for A's promise.18
9 Hull v. Hull, 16 Ohio C. C. App. 688, 9 Ohio C. D. 19 [citing, Law v. Henry, 39 Ind. 414; Ungeley v. Ungeley, L. R. 4 Ch. Div. 73]; Pond v. Pond's Estate, 79 Vt. 352, 65 Atl. 97: Second Nat. Bank of Beloit v. Merrill, 81 Wis. 142, 29 Am. St. Rep. 870, 50 N. W. 503.
10Stovall v. McCutchen, 107 Ky. 577,
92 Am. St. Rep. 373, 47 L. R. A. 287, 54 S. W. 969.
11Oles v. Wilson, 57 Colo. 246, 141 Pac. 489.
12 See cases cited in this section.
13 See Sec. 934 et seq.
14 Humphreys v. Polak , 2 K. B. 385.
A subscription for the purpose of paying the pre-existing debts of a parish, which is made upon consideration that the parish raise by subscription a fund sufficient to pay the entire debt, and that it does not increase the current expenses of the parish during a period of five years, is supported by a sufficient consideration if the parish accepts such subscription, raises such fund, and does not increase its current expenses within such period of time.19 In almost every case it is impossible to discover any trace of financial loss or gain. In most of them, the promisee is clearly the gainer by his act or forbearance, and the promisor gets nothing of financial value.
Furnishing information,20 the act of a real estate agent in giving to one to whom he was selling his business a list of the realty in his hands for sale, so that he could obtain authority from the owners to act as their agent,21 swearing to a claim,22 attending a funeral,23 going to Europe,24 and guessing at the weight of a block of soap,25 are all examples of forbearance of legal rights which are considerations, though no financial loss may result to the promisee or gain to the promisor. The waiver by a city of the right to prohibit interment within city limits is consideration for a promise by a cemetery association not to charge more than a certain price for burial lots.26 A debtor's permission to his creditor to take out insurance on the life of the debtor is consideration for the creditor's promise to grant an extension of time.27 On the other hand, a promise by A to B not to disclose the amount of B's bid to the United States, which promise caused B to inform A of the amount of B's bid, was said not to be supported by consideration, though it was a part of a transaction in which B made oath before A, as notary, which was required by law; and B paid to A the fee fixed by statute.28
15Sheppey v. Stevens, 177 Fed. 484. (Such contract was, however, invalid as in restraint of marriage. See Sec. 930.
16Burgesser v. Wendel, 73 N. J. L. 286, 62 Atl. 994.
17Lyts v. Keevey, 5 Wash. 606, 32 Pac. 534 (a consideration for a note from the husband).
18Kelly v. Kelly (la.), 130 N. W. 380.
19 Robinson v. Nutt, 185 Mass. 345, 70 N. E. 198.
20 Wilkinson v. Oliveira, 1 Bing N. Cas. 490; Green v. Brooks, 81 Cal. 328, 22 Pac. 849; Reed v. Golden, 28 Kan. 632, 42 Am. Rep. 180; Cobb v. Cowdery, 40 Vt. 25, 94 Am. Dec. 370. Information of the location of an oil well on the land of the property of a third person is sufficient consideration for a promise to pay a certain sum to the informant if such property could be bought from such third person. Reed v. Golden, 28 Kan. 632.
21 Roush v. Gesman, 126 la. 493, 102 N. W. 495.
22Bretton v. Prettiman, T. Raym. 153, 1 Sid. 283, 2 Keb. 26; Amie v. Andrews, 1 Mod. 166; Brooks v. Ball, 18 Johns. (N. Y.) 337.
23Earle v. Angell, 157 Mass. 294, 32 N. E. 164.
24Devecmon v. Shaw, 69 Md. 199, 9 Am. St. Rep. 422, 14 Atl. 464.
25 Dunham v. Soap Mfg. Co., 34 N. B. 243.