Page:Harvard Law Review Volume 32.djvu/715

679 IGNORANCE OF IMPOSSIBILITY AS TO CONSIDERATION 679 IGNORANCE OF IMPOSSIBILITY AS AFFECTING CONSIDERATION THERE seems to be considerable unanimity of opinion among courts and legal writers that if one of two parties to a bilat- eral 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.^ In a weU-known work on contracts ^ 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: (i) "As where a person being indebted to another agreed with the servant of his creditor that, in consideration of the servant dis- charging 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." * In the first of the cases quoted the inability of the servant to legally discharge his master's debt made the consideration impossi- ble 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 considera- tion. It is no consideration (and therefore no contract) for A to promise to marry B under these circumstances, and for apparently ' 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." * Elliott on Contracts, § 226. ^ Paddock v. Robinson, 63 111. 99 (1872).
 * Siarvy v. Gibbons, 2 Lev. 161 (1674); Wald's Pollock on Contracts, 524.
 * Stevens v. Coon, i Pinney (Wis.), 356 (1843).