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'Houghtailing v. Randen, 25 Barb., 21; Sage v. Hazard,
6 id., 179; Seaman v. Hasbrouck, 35 id., 151; Briggs
v. Tillotson, 8 Johns., 304.

Lawrence v. Fox, 20 N. Y., 268; Judson v. Gray, 17
How. Pr., 289, 296.

Forbearance of a claim which the claimant knows to be
totally unfounded, is no consideration (Wade v.
Simeon, 2 C. B., 548; Dolcher v. Fry, 37 Barb., 152;
Morey v. Newfane, 8 id., 645). But forbearance of
a claim in the least doubtful, made in good faith,
even if unfounded, will support a promise (Crans v.
Hunter, Ct. of Appeals, Jan., 1864; Russell v. Cook,
3 Hill, 504; Seaman v. Seaman, 12 Wend., 381;
Longridge v. Dorville, 5 B. & Ald., 117). The ful-
fillment, at the request of A., of a promise previously
made to B., has been held a sufficient consideration
for a promise by A. (Scotson v. Pegg, 6 H. & N., 295).
Waydell v. Luer, 3 Den., 410; Livingston v. Radcliff, 6
Barb., 201; Miller v. Drake, 1 Caines, 45; Rutgers
v. Lucet, 2 Johns. Cas., 92; Parker v. Crane, 6
Wend., 647; Stuart v. McGuin, 1 Cow., 99; Elting v.
Vanderlyn, 4 Johns., 237; Smith v. Weed, 20 Wend.,
184; Heinman v. Moulton, 14 Johns., 466; Hilliard
v. Austin, 17 Barb., 141.

Decker v. Judson, 16 N. Y., 449; Smith v. Algar, 1
Barn. & Ad., 603; Conover v. Brush, 2 N. Y. Leg.
Obs., 289.

'Decker v. Judson, 16 N. Y., 449.

Livingston v. Rogers, 1 Cai., 583; Utica & Syracuse
R. R. v. Brinckerhoff, 21 Wend., 139; Roscorla v.
Thomas, 3 Q. B, 234.

S781. An existing legal obligation resting upon the promiser, or a moral obligation,2 originating in some benefit conferred upon the promiser, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise.3

Spencer v. Ballou, 18 N. Y., 330.

The common law does not recognize moral obligations,
except in a few cases, as sufficient to sustain a pro-
mise (Nash v. Russell, 5 Barb., 556; Geer v. Archer,
2 Barb., 420; Watkins v. Halstead, 2 Sandf., 311;
Ehle v. Judson, 24 Wend., 97; Smith v. Ware, 13
Johns., 257; Beaumont v. Reeve, 8 Q. B., 483;
Eastwood v. Kenyon, 11 Ad. & El., 438. But see to
the contrary, Doty v. Brown, 14 Johns., 381; Lee v.
Muggeridge, 5 Taunt., 36). The authorities, how-

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Consideration lawful.

Effect of its illegality.

Consideration exe

cuted or executory.

ever, entirely fail to establish any satisfactory princi-
ple upon which to distinguish between the different
species of moral obligations. Thus, in Bunn v.
Winthrop (1 Johns. Ch., 329), past seduction was
held a good consideration to support a grant. In
Beaumont v. Reeve (8 Q. B., 483) the same con
sideration was held insufficient to support a promise.
In Goulding v. Davidson (28 Barb., 438), it is said
that there must have been at some time an actual legal
obligation. Yet in Rice v. Welling (5 Wend., 595) and
Early v. Mahon (19 Johns., 147), the original contract
was usurious, and therefore void from the beginning.
The same may be said of promises to pay debts con-
tracted in infancy, which are held valid. Goulding v.
Davidson was reversed, 26 N. Y., 604. The rule
stated in the text seems to the commissioners to be
just, and to be, on the whole, as easily reconcilable
with the authorities in this state as any other that
can be devised.

Phetteplace v. Steere, 2 Johns., 442; Roscorla v.

Thomas, 3 Q. B., 234; Hopkins v. Logan, 5 M. & W.,
247; Kaye v. Dutton, 8 Scott N. R., 495, 502; S. C.,
Ray v. Dutton, 7 Man. & G., 807; Elderton v. Em-
mens, 6 C. B., 160; 13 id., 495.

S782. The consideration of a contract must be lawful, within the meaning of section 827.

$ 783. If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. This principle is deducible from all the cases taken together, though not to be found thus stated in any one case. Thus there is no doubt that, if the consideration is single, or in other words indivisible, its partial illegality is fatal to the contract (Mills v. Mills, 36 Barb., 474; Rose v. Truax, 21 id., 361; Pepper v. Haight, 20 id, 429; Barton v. Port Jackson Plankroad Co., 17 id., 397; Burt v. Place, 8 Cow., 431; see Brown v. Brown, 34 Barb., 533; Porter v. Havens, 37 id., 343). The limitations of the rule are conformable to the principle of sections 778 and 779.

S784. A consideration may be executed or executory, in whole or in part. In so far as it is executory, it is subject to the provisions of chapter IV of this Title.

1

considera

S785. When a consideration is executory, it is not Executory indispensable that the contract should specify its tion. amount or the means of ascertaining it.' It may be left to the decision of a third person, or regulated by any specified standard."

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But

There is perhaps no precedent for a general provision
of this kind under the head of contracts.
finding it necessary to repeat the same section,
almost word for word, under the various heads of
Sale, Hire, Employment, Deposit, Carriage and Insur-
ance, and perceiving no reason why it could work
injustice if applied to other contracts, although in
practice it probably is not needed for them, the
commissioners have ventured to transfer it to this
part of the Code; to which, they think, it properly
belongs.

tained.

$786. When a contract does not determine the How ascer amount of the consideration, nor the method by which it is to be ascertained,' or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth.

1 Hoadly v. McLaine, 10 Bing., 487.

2 Brown v. Bellows, 4 Pick., 189.

Effect of bility of

impossi

$787. Where a contract provides an exclusive method by which its consideration is to be ascertained, which method is on its face impossible or in catio unlawful, the entire contract is void.

Pothier on Sale, No. 24.

ascertaincon

sideration.

$788. Where a contract provides an exclusive 1a. method by which its consideration is to be ascertained, which method appears possible on its face, but in fact is, or becomes, impossible or unlawful, such provision only is void.

Pothier (Sale, No. 24) holds that the contract in such case
is voidable, and this view has been adopted by some
writers in this country (Story on Sales, § 220; 1 Pars.

Cont., 5th ed., 525), but it seems more probable that the common law would regard the contract as made for a reasonable consideration, to be ascertained in any usual way. Thus, where a covenant to renew a lease provides for an arbitration to determine the rent, and no award is ever made, the court will enforce the renewal at a reasonable rent (Reformed Dutch Church v. Parkhurst, 4 Bosw., 491; Dunnell v. Keteltas, 16 Abb. Pr., 205)

Contracts express or implied.

Express

contract, what.

Implied

contract, what.

What con

tracts may oral

Contract not in writ

TITLE II.

MANNER OF CREATING CONTRACTS.

SLOTION 789. Contracts express or implied.

790. Express contract, what.

791. Implied contract, what.

792. What contracts may be oral.

793. Contract not in writing through fraud, may be enforced

against fraudulent party.

794. What contracts must be written.

795. Effect of writing.

796. Contract in writing, takes effect when.

797. Provisions of chapter on transfers of real property.

798. Seal, what.

799. Effect of seal.

$789. A contract is either express or implied.

S790. An express contract is one, the terms of which are stated in words.

S791. An implied contract is one, the existence and terms of which are manifested by conduct.

The ordinary definition of an implied contract includes obligations imposed by law upon parties, as between each other. These obligations are, however, considered in another part of this Code.

$792. All contracts may be oral, except such as are specially required by statute to be in writing.

See Bank of Rochester v. Jones, 4 N. Y., 497; Flory v.
Denny, 7 Exch., 581.

$793. Where a contract, which is required by law

ing through to be in writing, is prevented from being put into

fraud, may

be enforced writing by the fraud of a party thereto, any other

fraudulent

party who is by such fraud led to believe that it is in against writing, and acts upon such belief to his prejudice, party. may enforce it against the fraudulent party.

Story Eq. Jur., § 768. This principle of equity ought

to be recognized in all cases, whether legal or equitable.

2

contracts

written.

S794. The following contracts, or some memoran- What dum thereof, expressing the parties, their consent must be and the object of the contract, must be in writing, subscribed by the party to be charged thereby, or by his agent for the purpose:

1. An agreement that, by its terms, cannot be fully performed within one year ;

2. An agreement made upon consideration of marriage, other than mutual promises to marry."

.

The consideration is no longer necessary to be stated
(Laws of 1863, ch. 464). Such at least was the
undoubted intention of the legislature, though under
the decision in Wain v. Warlters (5 East, 10), it is
difficult to say whether its intention is plainly
expressed. The language here proposed is unmis-
takable in its meaning.

The names of all the parties must be stated in the
memorandum (Williams v. Lake, 2 El. & El., 349).

The whole object of the contract, and all its terms, must
be expressed (Wright v. Weeks, 25 N. Y., 153).
The language of the statute is "is not to be," &c. It is

construed as applying only to contracts which cannot
possibly be executed within a year, under any contin-
gency (Dresser v. Dresser, 35 Barb., 573; Artcher v.
Zeh, 5 Hill, 200; P'impton v. Curtiss, 15 Wend., 336;
McLees v. Hale, 10 id., 426; Moore v. Fox, 10 Johns.,
244. Compare Day v. N. Y. Central R. R., 31 Barb.
548; Pitkin v. Long Island R. R., 2 Barb. Ch. R.,
221; see Talmadge v. Rensselaer & Saratoga R. R.,
13 Barb., 593).

Day v. N. Y. Central R. R., 31 Barb., 548, 556; Am-
burger v. Marvin, 4 E. D. Smith, 393; Lockwood v.
Barnes, 3 Hill, 128; Broadwell v. Getman, 2 Den.,
87; Bracegirdle v. Heald, 1 Barn. & Ald., 722.
The words "from the making thereof," are omitted in
order to harmonize the rules in relation to contracts
affecting both real and personal property, which are
now governed by different provisions on this point
(Young v. Dake, 5 N. Y., 463; overruling Croswell
v. Crane, 7 Barb., 191.) The commissioners think,
moreover, that the strictness of this provision has

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