§ 568. Mutual promises are concurrent considerations, and will support each other, unless one or the other be void;2 in which case, there being no consideration on the one side, no contract can arise. But if the promise on one side be only voidable, as in consideration of money given, or of a promise by an infant, it is sufficient.3
§ 569. Mutual promises, however, to be obligatory, must be made simultaneously. If they be made at different times on the same day, they will not be a good consideration for each other, because of the want of reciprocity of obligation at the moment the contract is made.4 It is not, however, necessary that each promise should be absolute, so that either party could enforce it against the other;-for a promise conditional on the doing of some act may be rendered binding by the act, while it may give no right to compel the doing of it. Thus, if a guaranty be given on condition of the employment of a particular person, the guarantor could not insist that such person should be employed, although, if he should be employed, the guaranty would be binding.5 Yet, until the conditional to sell and deliver them.1 And, indeed, the promise by one party to do an act which is not void, constitutes a sufficient consideration for a promise by the other party;2 as for an exchange of work, by which the accounts of each party may be paid by the other.3 Nor is it necessary in such cases that an express agreement should be proved, but it may be inferred from such circumstances as usually accompany a similar engagement.4 So, also, where several persons mutually agree to contribute certain sums of money toward a common object, which they desire to accomplish, the promise of all is a sufficient consideration for the promise of each,5 at least if the non-performance by one would occasion any prejudice to the others; or if, in consequence of such promises, liabilities be incurred within his knowledge.6
1 United States v. Buford, 3 Peters, 13.
2 Babcock v. Wilson, 17 Me. 372.
3 Com. Dig. Action on the Case, Assumpsit, B. 14; Doct. and Student, 181; Lampleigh v. Brathwait, Hob. 105; s. c. 1 Smith's Leading Cases, 67; Parish v. Stone, 14 Pick. 198.
4 Nichols v. Raynbred, Hob. 88 b; 1 Chitty, PI. 297; 2 Kent, Comm. 465; Livingston v. Rogers, 1 Caines, 585; Tucker v. Woods, 12 Johns. 190; Keep v. Goodrich, 12 Johns. 397. See Lester v. Jewett, 12 Barb. 502; McKinley v. Watkins, 13 111. 140; Dorsey v. Packwood, 12 How. 126; Governor & Co. of Copper Miners v. Fox, 3 Eng. Law & Eq. 420, and Bennett's note; 16 Q. B. 229; Commercial Bank v. Nolan, 7 How. (Miss.) 508; L'Amoreux v. Gould, 3 Seld. 349.
5 Kennaway v. Treleavan, 5 M. & W. 501. In this case Baron Parke said: 11 There is a case in the books, of Newbury v. Armstrong, 6 Bing. 201, which strongly resembles the present. There the guarantee was in these terms: 'I agree to be security to you for T. C. for whatever, while in your employ, you may trust him with, and in case of default, to make the same good;' promise be rendered binding by the act or time on which it is conditioned, it maybe retracted;1 unless, perhaps, when the retraction operates as an injury to the other party, - as by inducing him to make engagements or assume responsibilities.2 § 570. Reciprocal promises of marriage are binding; and the promise of an infant to marry is a sufficient consideration for a corresponding promise.3 A promise by a woman to marry a man is a good consideration for a note given by him to her, before such marriage, and the subsequent marriage does not of itself annul the note.4 So, also, a promise to accept and pay for goods, is a sufficient consideration for a promise and the contract was held to be good, on the ground that the future employment of the party was a sufficient consideration. It is said, and truly, that in the present case there was no binding contract on the plaintiffs, and that, notwithstanding the guarantee, they were not bound to employ Paddon. But a great number of the cases are of contracts not binding on both sides at the time when made, and in which the whole duty to be performed rests with one of the contracting parties. A guarantee falls under that class; when a person says, 'In case you choose to employ this man as your agent for a week, I will be responsible for all such sums as he shall receive during that time, and neglect to pay over to you;' the party indemnified is not, therefore, bound to employ the person designated by the guarantee; but if he do employ him, then the guarantee attaches and becomes binding on the party who gave it. It is, therefore, no objection in the present case to say that the plaintiffs were not obliged to take Paddon into their service; they might do so or not, as they pleased; but having once done so, the guarantee attaches, and the defendant becomes responsible for the default." See also Mozley v. Tinkler, 1 C. M. & R. 692; and ante, § 39 to 52; Morton v. Burn, 7 Ad. & El. 19; 2 Wms. Saund. 137 i; Laythoarp v. Bryant, 2 Bing. N. C. 735.
1 Routledge v. Grant, 4 Bing. 660.
2 See White v. Demilt, 2 Hall, 405; Babcock v. Wilson, 17 Me. 372; Appleton v. Chase, 19 Me. 74.
3 WTillard v. Stone, 7 Cow. 22; Wightman v. Coates, 15 Mass. 1; Boynton v. Kellogg, 3 Mass. 189; Holcroft v. Dickenson, Carter, 233; s. c. 1 Freem. 95, 347; Harrison v. Cage, 5 Mod. 412; s. c. 12 Mod. 214; Baker v. Smith, Style, 295, 304. An oral agreement to marry and pay the debts of the intended husband, in consideration that he convey her his property, is valid and binding on the husband if fully performed by the wife. Dygertfl. Remerschnider, 32 N. Y. 629 (1865). And see Miller v. Goodwin, 8 Gray, 542. !
4 Wright v. Wright, 59 Barb. 506 (1871), modifying any thing contrary in Curtis v. Brooks, 37 Barb. 476.
§ 571. In the next place, all mutual compromises and arrangements, by which doubtful legal rights are waived or debts are settled, are valid, as being on sufficient consideration, if entered into without fraud.7 The compromise of a claim may be a good consideration for a promise, even before any litigation is commenced.8 But, as we have already seen, the waiver of a legal right which has no actual existence, or could not be enforced for want of any responsible party, would not be a sufficient consideration.1 So, if the compromise be against public policy, as if it be to waive a suit which the public interest demands should be prosecuted, it would not be binding.2 But where there is an honest difference of opinion between different parties as to doubtful rights, and a bond fide compromise is made, it will be supported both in law and in equity, whether the consideration be equal or not on both sides.3 And where the compromise has been founded upon a mistake in point of law, but with full cognizance of all the facts, it will afford no ground of relief in equity,4 unless there were imposition or breach of trust between parties standing in confidential relations, or fraudulent advantage taken by one over the other.5 So, also, all family compromises are upheld in equity; but in all such cases there must be strict honesty.6 So, also, the acceptance of a part of the sum due on a debt is a good consideration for a release of the whole claim, provided any change be made in the mode of payment, beneficial to the creditor, - as if the part payment be in a more con- , venient place, or at a day before the whole debt is due.7 Where there are mutual accounts and claims between persons, any bond fide settlement between them to liquidate the account will be upheld.1
1 Appleton v. Chase, 19 Me. 74; Bettisworth v. Campion, Yelv. 134; Nichols v. Raynbred, Hob. 88 b, and note by Williams; Briggs v. Tillot-son, 8 Johns. 304; White v. Demilt, 2 Hall, 405.
2 Quarles v. George, 23 Pick. 401; Myers v. Morse, 15 Johns. 425; Babcock v. Wilson, 17 Me. 372; Briggs v. Tillotson, 8 Johns. 304; Howe v. O'Mally, 1 Murph. 287; Coleman v. Eyre, 45 N. Y. 38 (1871).
3 Davis v. Petit, 27 Vt. 216 (1855).
4 Wightman v. Coates, 15 Mass. 1; Southard v. Rexford, 6 Cow. 254.
5 Society in Troy v. Perry, 6 N. H. 164; George v. Harris, 4 N. H. 533; Commissioners v. Perry, 5 Ohio, 58; State Treasurer v. Cross, 9 Vt. 289; Watkins v. Eames, 9 Cush. 537; Mirick v. French, 2 Gray, 420.
6 Bryant v. Goodnow, 5 Pick. 229; Farmington Acad. v. Allen, 14 Mass. 172; Homes v. Dana, 12 Mass. 190; Williams College v. Danforth, 12 Pick. 541.
7 Penn v. Lord Baltimore, 1 Ves. 450; Union Bank v. Geary, 5 Peters, 114; Barlow v. Ocean Ins. Co., 4 Met. 270; McKinley v. Watkias, 13 111. 140; Longridge v. Dorville, 5 B. & Al. 117.
8 Cook v. Wright, 1 B. & S. 559 (1861).
1 Wade v. Simeon, 2 C. B. 548; Newell v. Fisher, 11 Sm. & M. 431; White v. Bluett, 23 Law J. (n. s.) Exch. 36; 24 Eng. Law & Eq. 434. If A.'s house takes fire by accident, and communicates to B.'s, and upon B.'s representation to A. that he was the cause and is liable for it, he induces A. to give him a note for the value, such note is void. Knotts v. Preble, 50 111. 226 (1869).
2 Coppock v. Bower, 4 M. & W. 361; Gardner v. Maxey, 9 B. Monr. 90; Clark v. Ricker, 14 N. H. 44; Walbridge v. Arnold, 21 Conn. 424.
3 Longridge v. Dorville, 5 B. & Al. 117; Gould v. Armstrong, 2 Hall, 266; Edwards v. Baugh, 11 M. & W. 641.
4 Storrs v. Barker, 6 Johns. Ch. 169, 170; Leonard v. Leonard, 2 Ball & Beat. 179; Shotwell v. Murray, 1 Johns. Ch. 516; Lyon v. Richmond, 2 Johns. Ch. 51; Stewart v. Stewart, 6 CI. & Finn. 969; Harvey v. Cooke, 4 Russ. 34; Gordon v. Gordon, 3 Swanst. 470; Pickering v. Pickering, 2 Beav. 31, 56; Hunt v. Rousmaniere, 1 Peters, 15; 8. c. 8 Wheat. 179.
5 Smith v. Pincombe, 3 Macn. & G. 653; 10 Eng. Law & Eq. 50; Groves v. Perkins, 6 Sim. 576; Evans v. Llewellin, 1 Cox, 340; 1 Story, Eq. Jur. § 132-138; Langstaffe v. Fenwick, 10 Ves. 405; Stewart v. Stewart, 6 CI. & Finn. 911, 966.
6 See 1 Story, Eq. Jur. § 131, 132; Smith v. Pincombe, 3 Macn. & G. 653; 10 Eng. Law & Eq. 50; Stapilton v. Stapilton, 1 Atk. 210; Jodrell v. Jodrell, 9 Beav. 45.
7 Howe v. Mackay, 5 Pick 44; Brooks v. White, 2 Met. 283; Kellogg ».