Page:Harvard Law Review Volume 32.djvu/718

682 682 HARVARD LAW REVIEW like the baldest kind of an assumption, unless it is really meant that ignorance is the consideration. Unless this is intended, then consideration is assumed here and not proved. It is equally and for the same reason an assumption to say that there is a contract voidable at B's option on her discovery of A's fraud. In spite of exceptions, in our law one does not talk of contract as a usual thing without first making sure that consideration is there. Neither does it seem satisfactory to say with the court in Coover v. Davenport that there is a lawful contract on the part of the innocent party, for the same assumption is here made, and the statement implies a belief that a contract may be made by one party out of his own promise, whereas in a bilateral contract there must be two promises, each of which, in some way, furnishes consideration for the other. Professor Langdell says, "Both the mutual promises must be binding, or neither will be, . . . for if one of the promises is for any reason invalid, of course the other has no consideration, and so they both fall." ^' In Kelley v. Riley " it is said: "The strict rule that a consideration to support a promise is insuffi- cient, if its performance is utterly and naturally impossible, is met by the suggestion, that even if the future performance here [i. e., the agree- ment here was to marry within a reasonable time after making it] is to be treated as utterly impossible, yet the detriment or disadvantage which must necessarily result to the plaintiff in relying for any time on the promise affords sufficient consideration to support the defendant's contract." This is not very convincing, and is, in fact, the first ground of judgment in Wild v. Harris. It seems to be a sufficient reply to say that it is not the consideration defendant asked for. Mere reliance upon a promise is not to be accoimted consideration, even though detriment accompanies such reliance, and the reliance was reason- able, natural, and innocent. At least such facts would not con- stitute consideration in any widely accepted definition of that term. True, the consideration defendant asked for (a promise of marriage) was impossible of fulfilment; still it may, I think, be questioned whether that fact gives a court the right to say, " Because the consideration you asked is an impossible one, you must there- fore take as your consideration and be bound in a contract thereby " Summary of the Law of Contracts, § 82.
 * 106 Mass. 339, 342 (1871).