8 Ad. & El. 743. In Train v. Gold, 5 Pick. 384, Mr. Justice Wilde said: "If a contract is deliberately made without fraud, and with a full knowledge of all the circumstances, the least consideration will be sufficient." Raikes v. Todd, 8 Ad. & El. 846.
1 Knight v. Rushworth, Cro. Eliz. 469; Brooks v. Ball, 18 Johns. 337; Perkins v. Binke, 2 Sid. 123.
2 Traver v.---------, 1 Sid. 57; Brett v. Pretyman, 1 Sid. 283; Loo v..
Burdeux, 1 Sid. 369; Tuke's Case, 7 Mod. 13.
3 Train v. Gold, 5 Pick. 384. See Willetts v. Sun Mutual Ins. Co., 45 N. Y. 45 (1871).
4 Shadwell v. Shadwell, 9 C. B. (n. s.) 159 (1860).
5 Anon., 2 Vent. 45; Com. Dig. Action on the Case, Assumpsit, B. 10. 6 Baily v. Croft, 4 Taunt. 611. See also Bainbridge v. Firmstone, 8 Ad. & El. 743.
§ 549. But where the consideration is manifestly worthless, it would not support the contract. Thus, a promise by a father to discharge his son from a note he held against him, in consideration that the son would make no more complaint of the distribution of his father's property, has been held to be without consideration, and void.4 So, a promise to sell goods to a person on the usual terms, and for full value, the buyer being responsible, is no consideration for the latter's
1 Wilkinson v. Oliveira, 1 Bing. N". C. 490. See Orme v. Galloway, 9 Exch. 544; 24 Eng. Law & Eq. 521.
2 Phillips v. Berger, 2 Barb. 608.
3 Worrell v. Presbyterian Church, 8 C. E. Green, 96 (1872). See Miller v. Baptist Church, I Har. (N. J.) 251.
4 White v. Bluett, 23 Law J. (N.S.) Exch. 36; 24 Eng. Law & Eq. 434, Pollock, C. B., said: "The plea is clearly bad. By the argument a principle is pressed to an absurdity, as a bubble is blown until it bursts. Looking at the words merely, there is some foundation for the argument, and following the words only, the conclusion may be arrived at. It is said, the son had a right to an equal distribution of his father's property, and did complain to his father because he had not an equal share, and said to him, I will cease to complain if you will not sue upon this note. Whereupon the father said, If you will promise me not to complain, I will give up the note. If such a plea as this could be supported, the following would be a binding promise: A man might complain that another person used the public highway more than he ought to do, and that other might say, do not complain, and I will give you five pounds. It is ridiculous to suppose that such promises could be binding. So, if the holder of a bill of exchange were suing the acceptor, and the acceptor were to complain that the holder had treated him hardly, or that the bill ought never to have been circulated, and the holder were to say, now, if you will not make any more complaints, I will not sue you, such a promise would be like that now set up. In reality, there was no consideration whatever. The son had no right to complain, for the father might make what distribution of his property he liked; and the son's abstaining from doing what he had no right to do can be no consideration." And Baron Alderson added: "There is a consideration on one side, and it is said the consideration on the other is the agreement itself; if that were so, there could never be a nudum pactum." promise to pay the vendor the prior debt of a third person.1 So, a contract whereby the defendant agreed to remain with Mrs. A. for two years from the date hereof, for the purpose of learning the trade of dress-maker," was made to be a nude pact, there being no stipulation on Mrs. A.'s part operating as an inducement to such an agreement, so that no action could be maintained against the defendant for leaving her mistress.2 So, also, where an instrument was signed by the defendant in these terms: "Mr. J------, as you have a claim on my brother for £5 17s. 9c?. for boots and shoes, I hereby undertake to pay the amount within six weeks," it was held to be without consideration, and void.3 So, also, an agreement to do what a person is already bound to do, is invalid; and it is said it is not necessary, in order to invalidate the consideration, that the plaintiff's prior obligation to afford that consideration should have been an obligation to the defendant, but it may have been an obligation to a third person.4 The latter part of the proposition has, however, been directly denied, and a contrary rule declared, where the former contract was made with a third person.5 But a promise to pay for improvements to be made on land sold, in case the title should prove worthless, is not nudum factum?
§ 550. Where the inadequacy of consideration is so gross as to create a presumption of fraud and overreaching, or of unconscientious advantage taken under circumstances of distress or improvidence on the one side, or of mental incompetency on the other, the contract founded thereon cannot be enforced at law or in equity; and a court of equity will, at the instance of the party deceived, interfere and set it aside after it is executed.7 In cases of gross inadequacy, the court will also take advantage of every circumstance which indicates oppression or improper advantage, to found a presumption of fraud, and thereby to rescind the contract.1 The mere inadequacy of the consideration is not, however, in such cases the ground upon which a contract is invalidated, but the fraud which is thereby indicated; and, however inadequate the consideration may be, yet if the circumstances of the case indicate no unfair advantage on the one side, or no great incompetency on the other, the contract will be valid.2
1 Pfeiffer v. Adler, 37 N. Y. 164 (1867).
2 Lees v. Whitcomb, 2 Moo. & P. 86; s. c. 5 Bing. 34. See also Sykes v. Dixon, 9 Ad. & El. 693; Bates v. Cort, 3 Dowl. & Ryl. 696. But see Elderton v. Emmens, 6 C. B. 160.
3 James v. Williams, 5 B. & Ad. 1109.
4 Shadwell v. Shadwell, 9 C. B. (n. s.) 159, 178 (1860), per Byles, J.; Cole v. Shurtleff, 41 Vt. 311 (1868); Cobb v. Cowdery, 40 Vt. 25 (1867); Reynolds v. Nugent, 25 Ind. 328 (1865).