The same caution should be observed in construing the terms of an agreement.It is hard to see the propriety of erecting any detriment which an instrument may disclose or provide for, into a consideration, unless the parties have dealt with it on that footing.In many cases a promisee may incur a detriment without thereby furnishing a consideration.The detriment may be nothing but a condition precedent to performance of the promise, as where a man promises another to pay him five hundred dollars if he breaks his leg. The courts, however, have gone far towards obliterating this distinction.Acts which by a fair interpretation of language would seem to have been contemplated as only the compliance with a condition, have been treated as the consideration of the promise. And so have counter promises in an agreement which expressly stated other matters as the consideration. So it should be mentioned, subject to the question whether there may not be a special explanation for the doctrine, that it is said that an assignment of a leasehold cannot be voluntary under the statute of 27 Elizabeth, c.4, because the assignee comes into the obligations of the tenant. Yet the assignee's incurring this detriment may not be contemplated as the inducement of the assignment, and in many cases only amounts to a deduction from the benefit conferred, as a right of way would be, especially if the only obligation is to pay rent, which issues out of the land in theory of law.
But although the courts may have sometimes gone a little far in their anxiety to sustain agreements, there can be no doubt of the Principle which I have laid down, that the same thing may be a consideration or not, as it is dealt with by the parties.This raises the question how a thing must be dealt with, in order to make it a consideration.
It is said that consideration must not be confounded with motive.
It is true that it must not be confounded with what may be the prevailing or chief motive in actual fact.A man may promise to paint a picture for five hundred dollars, while his chief motive may be a desire for fame.A consideration may be given and accepted, in fact, solely for the purpose of making a promise binding.But, nevertheless, it is the essence of a consideration, that, by the terms of the agreement, it is given and accepted as the motive or inducement of the promise.Conversely, the promise must be made and accepted as the conventional motive or inducement for furnishing the consideration.The root of the whole matter is the relation of reciprocal conventional inducement, each for the other, between consideration and promise.
A good example of the former branch of the proposition is to be found in a Massachusetts case.The plaintiff refused to let certain wood be removed from his land by one who had made an oral bargain and given his note for it, unless he received additional security.The purchaser and the plaintiff accordingly went to the defendant, and the defendant put his name upon the note.The plaintiff thereupon let the purchaser carry off the wood.But, according to the testimony, the defendant signed without knowing that the plaintiff was to alter his position in any way on the faith of the signature, and it was held that, if that story was believed, there was no consideration. An illustration of the other half of the rule is to be found in those cases where a reward is offered for doing something, which is afterwards done by a person acting in ignorance of the offer.
In such a case the reward cannot be claimed, because the alleged consideration has not been furnished on the faith of the offer.
The tendered promise has not induced the furnishing of the consideration.The promise cannot be set up as a conventional motive when it was not known until after the alleged consideration was performed. Both sides of the relation between consideration and promise, and the conventional nature of that relation, may be illustrated by the case of the cask.Suppose that the truckman is willing to carry the cask, and the owner to let him carry it, without any bargain, and that each knows the other's state of mind; but that the truckman, seeing his own advantage in the matter, says to the owner, "In consideration of your delivering me the cask, and letting me carry it, I promise to carry it," and that the owner thereupon delivers it.I suppose that the promise would be binding.The promise is offered in terms as the inducement for the delivery, and the delivery is made in terms as the inducement for the promise.It may be very probable that the delivery would have been made without a promise, and that the promise would have been made in gratuitous form if it had not been accepted upon consideration; but this is only a guess after all.The delivery need not have been made unless the owner chose, and having been made as the term of a bargain, the promisor cannot set up what might have happened to destroy the effect of what did happen.It would seem therefore that the same transaction in substance and spirit might be voluntary or obligatory, according to the form of words which the parties chose to employ for the purpose of affecting the legal consequences.
