Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/89

 CHAP. VI.] AGREEMENTS TO TAKE STOCK. [§93. sential part of the consideration, 1 for where detriment has been ^^ ^ caused to the promisee it is immaterial whether the promisor mJLe** has been benefited or not; as, for instance, in the ordinary &k?m case of a guaranty the promisor is not benefited, but the prom- • isee acting upon the promise, in lending money or performing services, suffers detriment in legal intendment. As a usual thing, where detriment has been caused to the promisee, bene- fit will have accrued to the promisor ; but it is nevertheless to the detriment caused that we must look, as that is always suffi- cient to constitute a valid consideration. 2 Moreover, the con- sideration is presumed equal to the promise made therefor; and, however unequal in reality these two may be, the law will take no notice of their inequality, unless the inadequacy of the consideration is such as to raise a presumption of unfair ad- vantage or fraud. 3 § 93. Let us now apply these principles to an agreement to / (Zf* take shares in the stock of a corporation to be organized. If Arr^s. the agreement to take shares is entered into by all the parties at the same time, it would, at least if drawn so that the parties purported to agree with each other, usually contain an ample consideration, the consideration for the promise of A. being the detriment caused B., C, D., etc., the other parties, in promising to take shares, the simple act of signing 4 such an agreement being sufficient detriment caused to support a promise. It may a See Langdell's Summary of the Law of Contracts, § 53. 2 It has been the writer's opinion that benefit received at the time of making the promise is also a good consideration, whether detriment be caused to the promisee or not; that is, whether or not the consideration move from the promisee. But this is not universally accepted as law. See 2 Wharton on Contracts, § 784 et seq., and an article by the writer in the April, 1881, number of the American Law Review on " The Right of a Third Person to Sue on a Contract made in his Favor." 3 There is an exception to the rule stated in the text. Where the promise is to pay money absolutely, and the consideration is money given, the law will take notice of inequality between the consideration and the promise; and, therefore, money paid will not support a promise to pay more than the same sum with in- terest. See Langdell's Summary, etc., §55. A court of equity, more- over, will sometimes regard the actual adequacy of consideration in deciding whether or not to decree the specific performance of a con- tract. 309, 323; Brooks v. Ball, 18 Johns. 337. 69
 * See Haigh v. Brooks, 10 Ad. & El.