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 very term "failure of consideration " imports that the party to whom the consideration moved has not received under the contract what it was agreed that he should receive. If he receives exactly what he has contracted for, and if he stipulated originally for a thing of value, he cannot avoid the contract because it does not prove as advantageous to himself as he had anticipated.1 Thus A leased to B the privilege of displaying stereopticon advertisements on the roof and side-wall of A's building, at an agreed rent. Subsequently X, the owner of the building adjoining A's, leased his roof to another advertiser who put up a high screen which shut off the view of A's wall and roof. Such facts were not held to excuse B from paying rent.2 So if A makes a mere speculative bargain, intending to take the risk of gain or loss, as where he buys a future dividend not yet declared,3 the fact that the risk results adversely to A does not amount to failure of consideration. So a contract of sale of a patent previously issued cannot be avoided where the vendee knows exactly what he is getting, though it proves of no value to him.4 Some cases, however, hold that if the patent proves to be worthless, failure of consideration exists.5 Some cases cited on this point are really decided on the ground of fraud.6 A contract for the sale of a patent protecting certain specified improvements is broken if letters patent are thereafter issued for only a small portion of the improvements specified and the application as to the rest of such improvements is rejected.7 In other cases it has been held that if the patented article is so useless as to avoid the patent, the consideration fails.8 In such case the tender of the letters patent by the vendee to the vendor places the latter in statu quo.9 If the patent is void, it fails as a consideration,10 even if the vendor of such right has warranted his right to sell and convey the same.1.1
N. C. 498; Oakford v. Nixon, 1V7 Pa. St. 76; 34 L. R. A. 575; 35 Atl.
2 Oakford v. Nixon, 177 Pa. St. 76; 34 L. R. A. 575; 35 Atl. 588.
3 Tayloe v. Riggs, 1 Pet. (U. S.) 591.
4 Johnson v. Linen Co., 33 Conn. 436; Hildreth v. Turner. 17 111. 184; Myers v. Turner, 17 111. 179; De-trick v. McGlone, 46 Ind. 291; Nash v. Lull, 102 Mass. 60; 3 Am. Rep. 435; Van Norman v. Barbeau, 54 Minn. 388; 55 N. W. 1112; ^Yilson v. Hentges, 26 Minn. 288: 3 N. W. 338; Jones v. Reynolds, 120 N. Y. 213; 24 N. E. 279; Fair v. Shelton, 128 N. C. 105; 38 S. E. 290; Tod v. Wick, 36 O. S. 370.
5 Bierce v. Stocking. 11 Gray (Mass.) 174; Clough v. Patrick, 37 Vt. 421.
6 Comings v. Ledy, 114 Mo. 454; 21 S. W. 804.
7 Hargraves v. Machinery Co.. 19 R. I. 426; 34 Atl. 738.
8 Dickinson v. Hall. 14 Pick. (Mass.) 217; 25 Am. Dec. 390; Lester v. Palmer, 4 All. (Mass.) 14.V, Rowe v. Blanchard. 18 Wis. 441; 86 Am. Dec. 783.
9 Sandage v. Mfg. Co., 142 Ind. 148; 51 Am. St. Rep. 165; 34 L. It. A. 363; 41 N. E. 380.
10 Morrow v. Brown. 31 Ind. 378; Chemical, etc., Co. v. Howard, 150 Mass. 405: 148 Mass. 352; 28 N. E. 317; 20 N. E. 92; Earl v. Page. 6 N. H. 477: 26 Am. Dec 711: Cowan v. Dodd. 3 Coldw. (Tenn.) 278.
11 Dickinson v. Hall, 14 Pick. (Mass.) 217: 25 Am. Dec. 390.