IGNORANCE OF IMPOSSIBILITY AS AFFECTING CONSIDERATION

THERE

HERE seems to be considerable unanimity of opinion among courts and legal writers that if one of two parties to a bilateral agreement is unaware that, the promise of the other is because of the law impossible of being carried out, or of even being seriously considered, the party so unaware, upon a breach of the promise, may sue in contract. It does not seem to the writer that this is a correct view to take of the matter, but that the true ground of recovery in such a case is estoppel, or if there has been fraud, that a tort action for deceit is the appropriate action to bring.1

In a well-known work on contracts 2 it is said, "When a positive rule of law renders the consideration impossible it will not support a contract." This thesis is then illustrated by three examples: (1) "As where a person being indebted to another agreed with the servant of his creditor that, in consideration of the servant discharging him for the debt, he would do certain work;" (2) "a promise that another's land shall sell for a certain sum on a given day;" (3) "a promise to marry by one already married and known so to be by the other." 5

In the first of the cases quoted the inability of the servant to legally discharge his master's debt made the consideration impossible of rendition and the contract void. In the second the same reason holds, - the impossibility in law of compelling the sale of another's land within a certain time or for a certain price. But it is in the third example that the words occur to which I wish to direct attention-"and known so to be by the other." Only here is the state of mind of the promisee toward the promise depicted as having any bearing on the character of the promise as consideration. It is no consideration (and therefore no contract) for A to promise to marry B under these circumstances, and for apparently 1 ASHLEY, THE LAW OF CONTRACTS, § 47; HARRIMAN ON CONTRACTS, 2 ed., § 233; CLARK ON CONTRACTS, § 180. But see WALD'S POLLOCK ON CONTRACTS, 396, note "S." 2 ELLIOTT ON CONTRACTS, § 226.

3 Harvy v. Gibbons, 2 Lev. 161 (1674); WALD'S POLLOCK ON CONTRACTS, 524. 4 Stevens v. Coon, 1 Pinney (Wis.), 356 (1843).

5 Paddock v. Robinson, 63 Ill. 99 (1872).

two reasons: (1) A is already married, and (2) B knows that fact. One is, it appears, just as much a factor as the other. If regard were had solely to the matter of legal impossibility, one might rather naturally think the first of the given reasons amply sufficient by itself, and the second superfluous or irrelevant. In point of logic, at any rate, any given thing which is impossible in fact would seem not to be less so because of the belief or unbelief as to its possibility on the part of one attempting to deal with it. It matters not whether the impossibility is physical or legal: One may think that he can tread on air, or commit a legal murder, but his thought about the matter would have no influence to change the outcome of his attempt to do either. And it would seem to be true that A's promise to B to do either of these things would be of precisely equal value to B, whether A thought it possible to execute either feat, or impossible. In other words, you have on the one hand a state of mind, a subjective thing, and on the other a state of fact, an objective thing; and the whole purpose of this article is to cast a doubt, at least, on the propriety of allowing the former to count as consideration, when the consideration asked for is the latter.

In order to show that this is done, let us take the case suggested by the opening paragraph a case just the opposite of the one we have been considering one where the promisee is unaware of the legal impossibility involved, and where consequently courts and writers on the law seem to be equally at one in holding that there is a contract.6 Two cases illustrate this doctrine: Wild v. Harris and Millward v. Littlewood. In both cases a married man promised to marry an unmarried girl who was ignorant of his existing status, in return for her promise made in good faith to marry him. In each case, the girl suing him in assumpsit for breach of promise was allowed to recover. In the former of the two cases it was urged in defense that no consideration for the defendant's promise had been shown, since the plaintiff on her own part could not perform her promise to marry defendant; and it was also said that a consideration is insufficient, if its performance be utterly impossible. Counsel also suggests that defendant might have

See page 1, note 1. See also WILLISTON ON SALES, § 663, note 4.

8

5 Exch. 775 (1850); 2 WILLISTON, Cases on ContraCTS, 552.

rendered himself liable to a tort action for deceit - a view of the matter which later commended itself to an American court." In deciding the case of Wild v. Harris for the plaintiff, Wilde, C. J., held that the promise alleged was to marry the plaintiff within a reasonable time; and that the plaintiff's counter-promise to marry the defendant within a reasonable time was, for one thing, "not absolutely impossible of performance, for his wife might have died within a reasonable time, and so he would have been in a condition to perform his promise to the plaintiff." This means of outflanking the fortress of legal impossibility thus seized upon by the English judge did not meet with the approval of the court in Noice v. Brown,10 on the theory that the practical effect of it was to make the law countenance an agreement in derogation of the marriage relation, and establish a rule contrary to public policy. This would, doubtless, be the judgment of most courts to-day." An agreement to marry after the death or divorce of a present spouse would be just as void, just as impossible for the law to consider seriously or permit, as would be under the same circumstances an agreement to marry presently. But however that may be, it is with the latter kind of case, and not with the former, that I wish to deal. In order that the discussion may be more clear, let us take as our model the following A B case:

A, a married man, intending to deceive B, an unmarried girl ignorant of A's existing marriage, promises to marry B presently, and in return for his promise requests and obtains B's promise to marry him presently. The question is, can there be found in such a combination of facts any consideration upon which a contract can be erected that is binding upon A, and if so, what is it that B does that constitutes such consideration?

The usual answer, or an essential part of it, as has already been pointed out, is that B is ignorant of A's existing marriage, and that therefore an action ex contractu lies.12 When so stated, it seems

9 Pollock v. Sullivan, 53 Vt. 507, 38 Am. Rep. 702 (1880). See also Blattmacher v. Saal, 29 Barb. (N. Y.) 22 (1858). Opposed to these two cases, which seem to the writer to take the right view, are Coover v. Davenport, 1 Heisk. (Tenn.), 368 (1870), and Kelley v. Riley, 106 Mass. 339 (1871).

10 38 N. J. L. 228 (1876); 2 WILLISTON, CASES ON CONTRACTS, 543.

11 Brown v. Odill, 104 Tenn. 250, 56 S. W. 840 (1900).

12 Coover v. Davenport, 1 Heisk. (Tenn.), 368, 377: "As plaintiff did not know that defendant was married, it was a lawful contract on her part," etc.

like the baldest kind of an assumption, unless it is really meant that ignorance is the consideration. Unless this is intended, then consideration is assumed here and not proved. It is equally and for the same reason an assumption to say that there is a contract voidable at B's option on her discovery of A's fraud. In spite of exceptions, in our law one does not talk of contract as a usual thing without first making sure that consideration is there. Neither does it seem satisfactory to say with the court in Coover v. Davenport that there is a lawful contract on the part of the innocent party, for the same assumption is here made, and the statement implies a belief that a contract may be made by one party out of his own promise, whereas in a bilateral contract there must be two promises, each of which, in some way, furnishes consideration for the other.

Professor Langdell says, "Both the mutual promises must be binding, or neither will be, . . . for if one of the promises is for any reason invalid, of course the other has no consideration, and so they both fall." 13 In Kelley v. Riley 14 it is said:

"The strict rule that a consideration to support a promise is insufficient, if its performance is utterly and naturally impossible, is met by the suggestion, that even if the future performance here [i. e., the agreement here was to marry within a reasonable time after making it] is to be treated as utterly impossible, yet the detriment or disadvantage which must necessarily result to the plaintiff in relying for any time on the promise affords sufficient consideration to support the defendant's contract."

This is not very convincing, and is, in fact, the first ground of judgment in Wild v. Harris. It seems to be a sufficient reply to say that it is not the consideration defendant asked for. Mere reliance upon a promise is not to be accounted consideration, even though detriment accompanies such reliance, and the reliance was reasonable, natural, and innocent. At least such facts would not constitute consideration in any widely accepted definition of that term. True, the consideration defendant asked for (a promise of marriage) was impossible of fulfilment; still it may, I think, be questioned whether that fact gives a court the right to say, "Because the consideration you asked is an impossible one, you must therefore take as your consideration and be bound in a contract thereby

13 SUMMARY OF THE LAW OF CONTRACTS, § 82.

14 106 Mass. 339, 342 (1871).

something you did not ask for." Back of this attitude of the courts it is hard to avoid seeing as its more or less unconscious motive and source, perhaps, a certain indignation at the defendant's wrongful conduct, and a feeling that he is not in a position to object to being harnessed in a contract, since at any rate he is the author of his own woes. Doubtless such a view is justified as far as the defendant personally is concerned, but what about legal theory? Does an immoral man cease in the eyes of the law because of his immoral tendencies to be capable of setting his personal estimate on the relative values of things? Can he, in other words, no longer lawfully know his own mind? Of course he cannot be allowed to carry out his project, but the question that concerns us is merely this: Is it good legal theory to say that the defendant is not only to be so prevented, but that also he is guilty of the breach of a contract made upon a consideration he did not ask for, but which the law provided, in order to fix a contract liability upon him? This appears to be undesirable. "The consideration is the matter accepted or agreed upon as the equivalent for which the promise is made.” 15

In Meyer v. Haworth 16 the facts were that a merchant had sold goods to a married woman supposing her to be single. Later he sued her in assumpsit, relying on her promise to pay for the goods made by her subsequent to her husband's death. It was held there was no consideration for her second promise, since the first promise (made during her coverture) to pay for the goods was wholly void. Professor Williston says in this connection:

"A promise which is void is insufficient consideration, and the cases indicate no inquiry on the part of the court whether the party giving a promise in exchange for the void promise knew or did not know the facts which made void the promise he received." 17

In a note to the same passage the same writer suggests,

"If lack of knowledge of these facts made a difference, it might be urged that mistake rather than lack of consideration was the reason for the invalidity of the bargain."

If the promisee's "unawareness" of the invalidity of the other's promise does not form consideration and give rise to a contract 16 8 A. & E. 467 (1838).

15 LEAKE ON CONTRACTS, 6 ed., 435.

17

27 HARV. L. REV. 517.