Wolford v. Powers. The Supreme Court of South Carolina said: "Every man was free to make a contract, and free to refuse it; but when once made, he was bound by it, where there was no fraud, concealment or latent defect. * * * * * Inadequacy of consideration is not alone any ground for setting aside a contract solemnly entered into." Whitefield v. McLeod, 2 Bay; 1 Am. Dec. 650. In Barnum v. Barnum, 8 Conn. 469; 21 Am. Dec. 689, the defendant bought a lottery ticket, which at the time was utterly worthless; and he was held liable on the note executed for it. The court referred to the case of the Earl of March v. Pigot, 5 Burr. 2802, where two young men made a bet as to which should first come to his estate. The notes executed by the young men ran as follows: "I promise to pay to the Earl of March 500 guineas if my father dies before Sir William Codrington. The other read thus: "I promise to pay to Mr. Pigot 1,600 guineas, in case Sir William Codrington does not survive Mr. Pigot's father." At the time the bet was made Pigot's father was dead, and yet Lord MANSFIELD held that there was a valid consideration for the note. In Earl v. Peck, 64 N. Y. 596, a case similar to this in many respects, the court says: "The only point insisted upon in this court relates to the consideration. The note is for $10,000, and expresses the consideration to be for services rendered. The plaintiff had been the housekeeper for the defendant, who was a bachelor, for seven or eight years, and the latter was indebted to her for her services in some amount, and the evidence tended to prove that at some time during the service it was agreed that the amount of compensation should be left to the intestate. Mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not a defense to a note. It is not necessary that the consideration of a note shall be equal in pecuniary value to the obligation incurred. If no part of the consideration was wanting at the time, and no part of it subsequently failed, although inadequate in amount, the note is a valid obligation. * There is no standard whereby courts can limit the measure of value in such a case, and an obligation is not wanting even partially in consideration, because the value is less than the obligation." * The case before us, in some of its features, resembles that of Cowee v. Cornell, 75 N. Y. 91; s. c., 31 Am. Rep. 428, where a Wolford v. Powers. note for services was sustained, although the amount was $20,000, and greatly in excess of the value of the services. The court said: "Mere inadequacy in value of the thing bought or paid for is never intended by the legal expression, want or failure of consideration. This only covers either total worthlessness to all parties or subsequent destruction partial or complete." The case of Lindell v. Rokes, 60 Mo. 249; s. c., 21 Am. Rep. 395, is a peculiar one. There the consideration of the note sued on was the payee's promise to abstain from the use of intoxicating liquors for eight months; and it was held to be sufficient to support the note. In Parks v. Francis' Adm'r, 50 Vt. 626; s. c., 28 Am. Rep. 517, the consideration of the promise was the agreement of the father to name his son Nathan Francis Parks, and the court seems to have treated this as a valid consideration, although the point is not expressly decided, as the case went off upon a question whether the oral contract was within the statute of frauds. There are very many American cases illustrating the principle we are considering, and treating as valid all sorts of considerations, among them: Crow v. Harmon, 25 Mo. 417; Johnson v. Titus, 2 Hill, 606; Oakley v. Boorman, 21 Wend. 588; Sawyer v. McLouth, 46 Barb. 350; Hurd v. Green, 17 Hun, 327; King's Ex'rs v. Hanna, 9 B. Monr. 369; Seymour v. Delancey, 6 Johns. Ch. 222; 14 Am. Dec. 552; Brooks v. Ball, 18 Johns. 337; Sanborn v. French, 2 Fost. 246. Before passing from this branch of the case, there is an English decision which we think deserves attention; the case to which we refer is that of Shadwell v. Shadwell, 30 L. J. 145. In that case the decedent wrote the following letter to his nephew: "I am glad to hear of your intended marriage with Ellen Nicholl, and as I promised to assist you at starting, I am happy to tell you that I will pay you one hundred and fifty pounds yearly during my life, and until your annual income derived from your profession of a chancery barrister shall amount to six hundred guineas, of which your own admission will be the only evidence that I shall receive or require." The declaration averred that the nephew relied upon this promise, and married the woman named in the letter. ERLE, C. J., in delivering the opinion of the court, said: "Then, do these facts show that the promise was in consideration, either of the loss to be sustained by the plaintiff, or the benefit to be derived from the plaintiff to the uncle, at his, the uncle's, request? My answer is in the affirmative. First, do these facts show a loss sus Wolford v. Powers. * * tained by the plaintiff at the uncle's request? When I answer this in the affirmative, I am aware that a man's marriage with the woman of his choice is in one sense a boon, and in that sense the reverse of a loss; yet as between the plaintiff and the party promising an income to support the marriage, it may be a loss. Secondly, do these facts show a benefit derived from the plaintiff to the uncle at his request? In answering again in the affirmative, I am at liberty to consider the relation in which the parties stood, and the interest in the status of the nephew which the uncle declares." There are, it is commonly but not altogether accurately said, two exceptions to the general rule we have stated: First. Where the sole consideration is money, and the amount is greatly disproportioned to the value of the promise. Second. Where the consideration is so grossly disproportionate to the value of the promise as to indicate fraud, shock the conscience of the court, and make the enforcement of the contract unconscionable. Of these in their order. First. A money consideration is capable of exact and definite admeasurement; its value is fixed and unalterable, and there cannot be any uncertainty as to its adequacy or inadequacy. The parties really exercise no judgment in passing upon its value, for that never is in doubt. Courts can therefore pass upon its sufficiency without infringing the rule that where the parties have for themselves determined the sufficiency of the consideration, courts will not review their decision. Schnell v. Nell, 17 Ind. 29; Shepard v. Rhodes, 7 R. I. 470. But where the consideration is something else than money, there must be some exercise of judgment in ascertaining and settling its value. Second. Where the consideration is so grossly inadequate as to shock the conscience, courts will interfere, although there has been some exercise of judgment by the parties in fixing it. But it will be found upon an analysis of the cases, that courts interfere upon the ground of fraud, and not upon the ground of inadequacy of consideration. The courts never do interfere, unless the consideration is so grossly inadequate as to amount to fraud or oppression. Mr. Pomeroy has given the subject careful investigation, and concludes his discussion with this remark: "Even then fraud, and not inadequacy of price, is the true and only cause for the interposition of equity and the granting of relief." 2 Pomeroy Eq. Jur., § 927. Wolford v. Powers Judge Story is still more emphatic in his statement of the rule: "Mere inadequacy of price, or any other inequality in the bargain, is not however to be understood as constituting, per se, a ground to avoid a bargain in equity. For courts of equity, as well as courts of law, act upon the ground that every person who is not, from his peculiar condition or circumstances, under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses; and whether his bargains are wise and discreet, and profitable or unprofitable, or otherwise, are considerations not for courts of justice but for the party himself to deliberate upon. Inadequacy of consideration is not, then, of itself, a distinct principle of relief in equity. The common law knows no such principle. The consideration, be it more or less, supports the contract. Common sense knows no such principle." 1 Story Eq. Jur., §§ 244, 245. In Griffith v. In Griffith v. Spratley, 1 Cox C. C. 383, the chief baron said there was no case in which mere inadequacy of price, independent of other considerations, had been held sufficient to set aside a conveyance. In Woodfolk v. Blount, 3 Haywood, 146; S. C., 9 Am. Dec. 736, the Supreme Court of Tennessee made the same declaration. The case of Harrison v. Guest, 8 H. L. C. 481, was ably argued, and it was held, Lord Chancellor CAMPBELL, and Lords BROUGHAM, WENSLEYDALE and CRANWORTH, all giving opinions, that mere inadequacy of consideration would not invalidate a contract. Lord WENSLEYDALE said: "My lords, I entirely agree with the opinion of my noble and learned friend on the woolsack; I concur entirely in all the observations that he has made upon this case; I do not feel the least doubt about it." The case cited was very like the present, and is strong authority upon this point. The question in the case at bar therefore comes to this: Did Wolford perpetrate a fraud upon Charles Lehman? If, upon the facts stated in the answer and reply, we can justly declare that the former was guilty of fraud, actual or constructive, then we can sustain the judgment; otherwise we must reverse it. The character of the consideration is an important matter, as there is, as we have seen, a marked and clear distinction between a determinate money consideration and an indeterminate one. This distinction is pointed out in Schnell v. Nell, supra, and in Smock ▾. Pierson, supra. In this last case it was said: "In estimating the value of a thing as the consideration for a promise, there is a Wolford v. Powers. manifest distinction between property of a certain and determinate value, and things which have but a contingent and indeterminate value. But in any event, mere inadequacy of consideration is not sufficient to defeat a promise." In Kerr v. Lucas, 1 Allen, 279, it was held that where the value of a consideration is indefinite, the parties have a right to fix it for themselves, and the courts cannot overturn their decision upon its sufficiency. The consideration in the case before us was, except as to the $40 paid in money, an indeterminate one, and one which the parties alone were competent to measure and determine. Where a party contracts for the performance of an act which will afford him pleasure, gratify his ambition, please his fancy, or express his appreciation of a service another has done him, his estimate of value should be left undisturbed, unless, indeed, there is evidence of fraud. There is in such a case, absolutely no rule by which the courts can be guided, if once they depart from the value fixed by the promisor. If they attempt to fix some standard, it must necessarily be an arbitrary one, and ascertained only by mere conjecture. If, in the class of cases under mention there is any legal consideration for a promise, it must be sufficient for the one made; for if this be not so, then the result is that the court substitutes its own judgment for that of the promisor, and in doing this makes a new contract. Where the purpose of the party is to secure a pecuniary or property benefit, there is much more ground for judicial interference than in a case like this, where the controlling purpose is not gain, but the gratification of a desire or fancy. Even in the former class of cases, courts never do interfere upon the sole ground of inadequacy of consideration, and certainly should not in the class to which the one at bar belongs. No person in the world, other than the promisor, can estimate the value of an act which arouses his gratitude, gratifies his ambition, or pleases his fancy. If there be any consideration at all, it must be allotted the value the parties have placed upon it, or a conjectural estimate, made arbitrarily and without the semblance of a guide, must be substituted by the courts. Three of them, We turn now to the cases cited by the appellee. Jestons v. Brooke, Cowp. 793, Floyer v. Edwards, id. 116, and Baxter v. Wales, 12 Mass. 365, are the same in principle, and decide that a creditor cannot fix an oppressive and unconscionable sum as the measure of damages for a breach of contract. They do |