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.
If the promise is to pay money or to do something, the value of which is fixed by law in money, and the consideration is the payment of money or the doing of something which is fixed by law at a value in money, the consideration and the promise must be adequate each for the other.1 Thus a promise to pay one sum
46Lawson v. Muffinix, 104 Md. 156, 64 Atl. 938.
47 Detroit Lubricator Co. v. Larigne, MM Mich. 650, 115 N. W. 988,
48 Smith v. Bangham, 156 Cal. 369, 104 Pac. 689.
49 Ditto v. Slaughter (Ky.), 92 S. W. 2.
1 Kansas. Work v. Fidelity Oil & Gas Co., 79 Kan. 118, 98 Pac. 801.
Maryland. Engler v. Garrett, 100 Md. 387, 59 Atl. 648.
Missouri. Walker v. Bohannon, 243 Ma 119, 147 S. W. 1024.
Nebraska. Stanton v. Driffkorn, 83 Neb. 36, 118 N. W. 1092.
South Carolina. Marthinaon v. Mc-Cutchen, 84 S. Car. 256, 66 S. E. 120.
2 United States. Murks v. Gates, 154 Fed. 481, 83 C. C. A. 321; Clark v. Rosario Mining & Milling Co., 176 Fed. 180, 99 C. C. A 534.
Alabama. Thompson v. Jones (Ala.), 39 So. 983; Alabama Cent. R. Co. v. Long, 158 Ala. 301, 48 So. 363.
Iowa. New York Brokerage Co. v. Wharton, 143 la. 61, 119 N. W. 969.
Maryland. George Gunther, Jr., Brewing Co. v. Brywczynski, 107 Md. 696, 69 Atl. 514.
Missouri. Oliver v. Johnson, 238 Mo. 359, 142 S. W. 274.
3 Van Gundy v. Steele, 261 111. 206, 103 N. E. 754; Koehler v. Dennison, 72 Or. 362, 143 Pac. 649.
4 Bruner v. Cobb, 37 Okla. 228, L. B. A. 1916D, 377, 131 Pac. 165.
5 Bruner v. Cobb, 37 Okla. 228, L. R. A. 1916D, 377, 131 Pac. 165.
1 Wolford v. Powers, 85 Ind. 294, 44 of money in exchange for a different sum is without consideration.2 A note which is given for the amount of a loan is not a consideration for the promise of the lender to regard the amount of a prior debt as merged in such loan.3 A consideration of one dollar is no consideration for a promise to pay over a thousand dollars;4 nor is one cent a consideration for a promise to pay six hundred dollars.5 A change in the medium of payment,6 as a release from a promise to pay coin when at a premium, in consideration for a promise to pay the additional amount in currency,7 is supported by sufficient consideration. A promise to extend payment at a lower rate of interest is held to be without consideration if made before maturity and if the interest under the new contract would be less than that due when the promise was made.8 The correctness of this decision is doubtful. The creditor may for some reason of his own desire to extend the time of payment; and under such extension the debtor has not the option to pay principal and interest to maturity at maturity and thus discharge his debt.9 A note for the balance of the principal remaining due and for interest is without consideration as to such item of interest if such principal did not bear interest.10
If a substantial change in the method of paying the debt is made, the law will not inquire into questions of adequacy. Thus a contract to pay an annuity of sixty-two dollars and fifty cents quarterly is a consideration for a contract to release four thousand dollars, as it exceeds the legal interest thereon by ten dollars a year.11 So a promise to pay fifteen hundred dollars as a conditional subscription for the erection of .a church in case ten thousand dollars be raised is supported by a promise to pay the promisor two hundred and thirty-seven dollars, already voluntarily paid by him for the erection of a temporary chapel.12 A promise to repay a loan and to do other acts is supported by the consideration of making such loan.13 A loan upon mortgage security almost up to the full value of the security is consideration for promises to repay such loan with interest and not to sell beer made by any one but the mortgagee.14 If any other legal right than the payment of money is forborne, the question of adequacy is immaterial. A release of claims aggregating eighteen thousand dollars and the payment of twenty-eight thousand dollars, is consideration for the release of a possible right to contest a will, and if successful, to secure an interest in an ancestor's estate, which interest was worth less than one hundred thousand dollars.15 A contract by A, a mortgagee, to remit four hundred dollars on consideration that B, who owned the mortgaged realty but was not personally liable for the taxes, would pay the arrears of taxes for five years, is enforceable.16 If the holder of a note enters into a contract with the maker to sell such note to the maker before maturity at a discount, such promise is supported by an adequate consideration.17 So where the law fixes certain fees as compensation for certain work, a contract to do such work for more,18 or less,19 than his legal fees, is invalid.
Am. Rep. 16; Cuthbertson v. First Nat. Bank, 158 la. 144, 138 N. W. 1090.
Contra, Moore v. Bray, 1 Viner Abr. 310 (p]«. 31).
2 Indiana. Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453.
Iowa. Rauen v. Prudential Ins. Co., 129 la. 725, 106 N. W. 198.
Kentucky. Hey v. Harding (Ky.), 53 S. W. 33.
North Dakota. Andrews v. Schmidt, 10 N. D. 1, 84 N. W. 568.
Rhode Island. Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dec. 573. If forbearance to enforce such debt is an additional consideration, such promises are generally illegal on the ground of usury if the amount to be repaid exceeds the original debt plus lawful interest. See Sec. 959 et sea.
3 Cuthbertson v. First Nat. Bank, 158 la. 144, 138 N. W. 1090.
4 Shepard v. Rhodes, 7 R. I. 470, 64 Am. Dec. 573.
5 Schnell v. Nell, 17 Ind. 29, 70 Am. Dec. 403.
6 San Juan v. St. John's Gas Co., 195 U. S. 510, 49 L. ed. 299.
7 Smith v. McKinney, 22 O. S. 200. Contra, Turner v. Young, 27 Ind. 373, 89 Am. Dec. 508.
8 Price v. Mitchell", 23 Wash. 742, 63 Pac. 514.
9 See Sec. 606.
10 Jennison v. Stone, 3d Mich. 99.
11 Price's Administratrix v. Price's Administratrix, 111 Ky. 771, 66 S. W. 529.
12Hodges v. O'Brien, 113 Wis. 97, 88 N. W. 901.
13 Feigenspan v. Nizolek, 71 N. J. Eq. 382, 65 Atl. 703 [affirmed, Feigenspan v. Nizolek, 72 N. J. Eq. 949, 68 Atl. 1116],
14 Feigenspan v. Nizolek, 71 N. J. Eq. 382, 65 Atl'. 703 [affirmed, Feigenspan v. Nizolek, 72 N. J. Eq. 949, 68 Atl. 1116].
15 Estate of Wickersham, 153 Cal. 603, 96 Pac. 311.
16 Day v. Gardner, 42 N. J. Eq. 199, 7 Atl. 305.
Bell v. Pitman, 143 Ky. 521, 36 L. R. A. (N.S.) 820, 136 S. W. 1026.
18 England. Stotesbury v. Smith, 2 Burr. 924.
Illinois. Decatur v. Vermillion, 77 111. 315.
Kansas. Smith v. Fenner, 102 Kan. 830, 172 Pac. 514.
Kentucky. Mason v. Manning, 150 Ky. 805, 150 S. W. 1020.
Michigan. Burk v. Webb, 32 Mich. 173.
New York. Crofut v. Brandt, 58 N. Y. 106, 17' Am. Rep. 213; Carpenter v. Taylor, 164 N. Y. 171, 58 N. E. 53.
Ohio. Gilmore v. Lewis, 12 Ohio 281; Somerset Bank v. Edmund, 76 O. S. 396, 11 L. R. A. (N.S.) 1170, 81 N. E. 641.
Oklahoma. Oklahoma Ry. Co. v. Morris (Okla.), 148 Pac. 1032; Beck v. Sulser (Okla.), 150 Pac. 107.
Pennsylvania. Smith v. Whildin, 10 Pa. St. 39, 49 Am. Dec 572.
Virginia. Buek v. Nance, 112 Va, 28, 70 S. E. 515.
West Virginia. County Court v. Long, 72 W. Va. 8, 77 S. E. 328.
Such contracts are subject to other objections. The officer does only his legal duty (see Sec. 586); and further, his demanding and receiving excessive fees is usually a crime. See Sec. 892.
19 Duncan v. Scott County, 68 Ark.
Thus the selection of a notary to protest paper is no consideration for his promise to accept one-half his legal fees,20 and a promise by a county clerk not to charge the fees allowed by law for calling in scrip, made to induce the court to make the order calling in such scrip, is without consideration.21 A promise to pay a public officer compensation over and above his legal fees for performing a service which by law is to be paid for by certain specific fees in money, is without consideration and unenforceable.22 A promise to pay a witness more than legal fees for attendance which can be compelled by law lacks consideration.23 But if the attendance could not be compelled by law, as where the witness comes from another state,24 or where an expert is retained to prepare the case in advance, to be able to testify fully at the trial,25 a promise to pay more than legal fees is supported by a consideration.26