Whether the recital of a consideration in a written contract is conclusive, or whether the fact as to the existence and sufficiency of the consideration may be shown, is a question upon which there is a conflict of authority which can be reconciled only in part by distinguishing between contractual terms and recitals of fact. If this consideration in a simple executory contract is recited as fact, whether the promisor can contradict such recital to defeat the operation of the contract depends in part upon the question whether the parties really intended to pay such consideration or whether recital of consideration was inserted as a mere form, in order to turn a gratuitous promise, if possible, into a legal obligation. If the parties really intended that the consideration should be paid on performance, a recital of the payment or performance of such consideration may be contradicted, in order to enable the promisor to recover the consideration,1 but it can not

10 Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453; Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dec. 573.

11 Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dec. 573.

12 Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453.

1 Britton v. Metropolitan Life Insurance Co., 165 N. Car. 149, Ann. Cas. 1915D, 363, 80 S. E. 1072; Southern be contradicted in order to defeat the contract by showing that it was gratuitous,2 unless the failure to pay or perform is such a breach as will operate as a discharge.3 If the parties have entered into an ante-nuptial contract by which the prospective wife agrees to release her claims upon her husband's estate, in consideration of marriage and a certain sum of money, a receipt for the payment of which appears in the contract, the legal effect of such receipt may be contradicted for the purpose of enabling the wife to collect such amount of money if not paid, but it can not be contradicted for the purpose of rendering the ante-nuptial contract invalid.4 The recital of the payment of the first premium in a contract of insurance can not be contradicted for the purpose of showing that the policy has not taken effect, if it was the real intention of the parties that such premium should be paid.5 In some jurisdictions this rule has been enacted in statutory form with reference to certain classes of contracts, such as insurance contracts.6 Under such a statute the insurer may show that the premium was not paid, in fact, for the purpose of recovering the premium, but he can not show that it was not paid, in fact, for the purpose of showing that the contract of insurance had not yet taken effect.7

Life Insurance Co. v. Booker, 50 Tenn. (9 Heiak.) 606, 24 Am. Rep. 344; Bibelhausen v. Bibelhausen, 159 Wis. 365, 150 N. W. 516.

2 England. Roberts v. Security Co., [1897] 1 Q. B. 111.

California. Fa mum v. Phoenix Ins. Co., 83 Cal. 246, 17 Am. St. Rep. 233.

Indiana. Home Insurance Co. v. Gil-man, 112 Ind. 7, 13 N. E. 118.

Missouri. Dobyns v. Bay State Beneficiary Co., 144 Mo. 95, 45 S. W. 1107.

North Carolina. Britton v. Metropolitan Life Ins. Co., 165 N. Car. 149, Ann. Cas. 1915D, 363, 80 S. . 1072.

Wisconsin. Bibelhausen v. Bibelhausen, 159 Wis. 365, 150 N. W. 516.

3 See ch. LXXXIV.

4 Bibelhausen v. Bibelhausen, 159 Wis. 365,'150 N. W. 516.

5 England. Roberts v. Security Co., [1897] 1 Q. B. 111.

California. Farnum v. Phoenix Ins. Co., 83 Cal. 246, 17 Am. St. Rep. 233, 23 Pac. 869.

Indiana. Home Insurance Co. v. Gil-man, 112 Ind. 7, 13 N. E. 118.

Missouri. Dobyns v. Bay State Beneficiary Association, 144 Mo. 95, 45 S. W. 1107.

North Carolina. Kendrick v. Mutual Benefit Insurance Co., 124 N. Car. 315, 32 S. E. 728 [sub nomine, Kendrick v. Life Ins. Co., 70 Am. St. Rep. 5921; Britton v. Metropolitan Life Ins. Co., 165 N. Car. 149, Ann. Cas. 1915D, 363, 80 S. E. 1072.

Contra, Equitable Fire & Accident Office v. Ching Wo Hong [1907], A. C. 96; Christophersen v. Metropolitan Life Insurance Co., 199 Mich. 634, 165 N. W. 793; Sheldon v. Atlantic Fire & Marine Insurance Co., 26 N. Y. 460, 84 Am. Dec. 213.

6 Harrington v. Mutual Life Insurance Co., 21 N. D. 447, 34 L. R. A. (N. S.) 373, 131 N. W. 246; Donahue v. Mutual Life Insurance Co., 37 N. D. 203, L. R. A. 1918A, 300, 164 N. W. 50.

7 Palmer v. Continental Insurance instrument has not been transferred to a bona fide holder,16 or to one who has paid value therefor in reliance upon the obligation of an accommodation party. The recital of a valuable consideration in a negotiable instrument may be contradicted for the purpose of showing a partial want of consideration.17 An indorsement may be shown to have been without valuable consideration.18 A recital of consideration in a note and mortgage may be contradicted.19 A recital that A owns an interest in certain realty which B agrees to purchase, may be contradicted by showing that A did not own such an interest and that the real transaction was a gift.20

If the parties did not intend that the consideration should be paid, but they inserted a recital of consideration as a fact, in order to make a gratuitous promise enforceable at law if possible, the weight of authority is that such recital of a consideration may be contradicted to show that such apparent contract was in reality a gratuitous, unenforceable promise.8 A recital "for value received,"9 or "one dollar,"10 or "one dollar and other valuable considerations,"11 may be contradicted to show that the promise was without consideration, although it is said that such evidence should be clear and convincing inasmuch as the writing itself imports a consideration.12 The recital of a consideration, such as one dollar in an option to purchase realty, may be contradicted to show that such offer was not for value.13 A recital of a consideration, such as "one dollar and other valuable considerations" in a contract of guaranty, may be contradicted to show that such promise was gratuitous.14 A recital of a valuable consideration in a negotiable instrument may be contradicted to show that the promise was without valuable consideration,15 as long as such negotiable

Co., 132 Cal. 68, 64 Pac. 97; Peever Mercantile Co. v. State Mutual Fire Association, 23 S. D. 1, 19 Am. & Eng. Ann. Cas. 1236, 119 N. W. 1008 [same result on rehearing, 25 S. D. 406, 127 N. W. 559]; Harrington v. Mutual Life Insurance Co., 21 N. D. 447, 34 L. R. A. (N.S.) 373, 131 N. W. 246; Donahue v. Mutual Life Insurance Co., 37 N. D. 203, L. R. A. 1918A, 300, 164 N. W. 50.

• Colorado. Rude v. Lew, 43 Colo. 482, 24 L. R. A. (N.S.) 91, 96 Pac. 560.

Kansas. Rice v. Rice, 101 Kan. 20, 165 Pac. 799; Moon v. Moon, 102 Kan. 737, 173 Pac. 9.

Kentucky. Farmers' Bank v. Birk, 170 Ky. 761, 201 S. W. 315.

Michigan. Brown v. Smedley, 136 Mich. 65, 98 N. W. 856.

Minnesota. Northern National Bank v. Douglas, 135 Minn. 81, 160 N. W. 193.

South Dakota. Rosholt v. Woulph, - S. D. - , 167 N. W. 158.

9 Rosholt v. Woulph, - S. D. - , 10T N. W. 158.

10 Rude v. Levy, 43 Colo. 482, 24 L. R. A. (N.S.) 91, 96 Pac. 560.

11 Farmers' Bank v. Birk, 179 Ky. 761, 201 S. W. 315; Northern National' Bank v. Douglas, 135 Minn. 81, 160 N. W. 193.

12 Farmers' Bank v. Birk, 179 Ky. 761, 201 S. W. 315.

13 Rude v. Levy, 43 Colo. 482, 24 L. R. A. (N.S.). 91, 96 Pac. 560.

14 Northern National Bank v. Douglas, 135 Minn. 81, 160 N. W. 193.

15 Georgia. Hawkins v. Collier, 101 Ga. 145, 28 S. E. 632.

Iowa. First National Bank v. Felt, 100 la. 680, 69 N. W. 1057; Beaty v. Carr, 109 la. 183, 80 N. W. 326.

Kansas. Rice v. Rice, 101 Kan. 20, 165 Pac. 799.

Maine. Bigelow v. Bigelow, 93 Me. 439, 45 Atl. 513.

Minnesota. State Bank v. Pangerl, 139 Minn. 19, 165 N. W. 479.

New York. Kramer v. Kramer, 181 N. Y. 477, 74 N. E. 474.

Oklahoma. Holland Banking Co. v. Dicks, - Okla. - , 170 Pac. 253.

South Dakota. Rosholt v. Woulph, - S. D. - , 167 N. W. 158.

In some jurisdictions it is held that the recital of a valuable consideration in simple executory contract can not be contradicted by extrinsic evidence for the purpose of showing that such promise was gratuitous.21 A combination of the rules that a recital of consideration as a fact can not be contradicted, and that a nominal consideration is sufficient, leads to the result that some of the jurisdictions which hold that a nominal consideration is sufficient, go so far as to hold that a recital of a nominal consideration is conclusive as between the parties and can not be contradicted, in order to show that the contract has no consideration.22 An option for a certain length of time, in consideration of "one dollar and other considerations," has been held to be binding upon the offeror and not to be rendered invalid by reason of the offer of evidence tending to show that the recited consideration was not intended as the real consideration.23 If an assignment of a patent contains a recital of a valuable consideration, it has been said that the parties are "concluded * * * to challenge by parol evidence" the existence of such consideration.24 If A acknowledges in writing that he has received a certain sum of money from B, which A agrees to apply to saving C harmless from liability as surety on B's bond, it is said that A can not deny such consideration as against C, and A can not show that, in fact, he did not receive such money.25

18 See ch. LXXII.

17 Holland Banking Oo. v. Dicks, - Okla. - , 170 Pac. 253.

18 State Bank v. Pangerl, 139 Minn. 10, 165 N. W. 479.

19 Anderson v. Lee, 73 Minn. 397, 76 N. W. 24; Baird v. Baird, 145 N. Y. 659, 28 L. R. A. 375.

20 Moon v. Moon, 102 Kan. 737, 173 Pac. 9.

21 United States. Lawrence v. Mc-Cahnont, 43 U. S. (2 How.) 426, 11 L. ed. 326; United States Light & Heating Co. v. J. B. M. Electric Co., 189 Fed. 362.

Connecticut. Redfield v. Haight, 27 Conn. 31.

Georgia. Southern Bell Telephone & Telegraph Co. v. Harris, 117 Ga. 1001, 44 S. E. 885.

Illinois. Schneider v. Turner, 130 111. 28, 6 L. R. A. 164, 22 N. E. 497.

Massachusetts. Drury v. Fay, 31 Mass. (14 Pick.) 326.

Virginia. Watkins v. Robertson, 105 Va. 269, 115 Am. St. Rep. 880, 5 L. R. A. (N.S.) 1194, 54 S. E. 33.

22 United States. Lawrence v. Mc-Calmont, 43 U. S. (2 How.) 426, 11 L. ed. 326. (Possibly a valuable consideration other than that recited existed in this case.)

Connecticut. Redfield v. Haight, 27 Conn. 31.

Georgia. Southern Bell Telephone & Telegraph Co. v. Harris, 117 Ga. 1001, 44 S. E. 885.

Illinois. Schneider v. Turner, 130 111. 28, 6 L. R. A. 164, 22 N. E. 497.

Virginia. Watkins v. Robertson, 105 Va. 269, 115 Am. St. Rep. 880, 5 L. R. A. (N.S.) 1194, 54 S. E. 33.

Some of the cases which are cited as authority for the proposition that the recital of a consideration in a contract can not be contradicted for the purpose of defeating the legal effect of the contract, are cases in which the provision with reference to the consideration which it is sought to contradict is a contractual provision and not the recital of a fact;26 or they are cases in which a consideration of a contractual character is set forth in the written contract and one party attempts to show that an additional consideration was agreed upon,27 thus contradicting the provisions of the contract and adding new terms thereto.28 The parol evidence rule excludes extrinsic evidence of the intention direct, in a case of this sort, as in all similar cases in which, without seeking reformation in equity, the parties attempt to contradict the contractual provisions of a written contract.29