To illustrate the general doctrine, suppose that a man is
desirous of having a cask of brandy carried from Boston to
Cambridge, and that a truckman, either out of kindness or from
some other motive, says that he will carry it, and it is
delivered to him accordingly. If he carelessly staves in the
cask, there would perhaps be no need to allege that he undertook
to carry it, and on principle, and according to the older cases,
if an undertaking was alleged, no consideration for the assumpsit
need be stated. /1/ The ground of complaint in that case would be
a wrong, irrespective of contract. But if the complaint was that
he did not carry it as agreed, the plaintiff's difficulty would
be that the truckman was not bound to do so unless there was a
consideration for his promise. Suppose, therefore, that it was
alleged that he promised to do so in consideration of the
delivery to him. Would this be a sufficient consideration? The
oldest cases, going on the notion of benefit to the promisor,
said that it could not be, for it was a trouble, not a benefit.
/2/ Then take it from the side of detriment. The delivery is a
necessary condition to the promisor's doing the kindness, and if
he does it, the delivery, so far from being a detriment to the
promisee, is a clear benefit to him.
But this argument is a fallacy. Clearly the delivery would be
sufficient consideration to enable the owner to declare in
assumpsit for the breach of those duties which [291] arose,
irrespective of contract, from the defendant's having undertaken
to deal with the thing. /1/ It would be a sufficient
consideration for any promise not involving a dealing with the
thing for its performance, for instance, to pay a thousand
dollars. /2/ And the law has not pronounced the consideration
good or bad according to the nature of the promise founded upon
it. The delivery is a sufficient consideration for any promise.
/3/
The argument on the other side leaves out of sight the point of
time at which the sufficiency of the consideration is to be
determined. This is the moment when the consideration is
furnished. At that moment the delivery of the cask is a detriment
in the strictest sense. The owner of the cask has given up a
present control over it, which he has a right to keep, and he has
got in return, not a performance for which a delivery was
necessary, but a mere promise of performance. The performance is
still future. /4/
But it will be seen that, although the delivery may be a
consideration, it will not necessarily be one. A promise to carry
might be made and accepted on the understanding that it was mere
matter of favor, without consideration, and not legally binding.
In that case the detriment of delivery would be incurred by the
promisee as before, but obviously it would be incurred for the
sole purpose of enabling the promisor to carry as agreed.
Public-domain text, read in full here on John Shaqi.
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