A sufficient consideration for the agreement must exist, 2 Blackstone, Comm. 444; Chitty, Contr. 20; 2 Q. B. 851; 5 Ad. & E. 548 ; 7 Brown, Ch. 550; 7 Term, 350; as against third parties this consideration must be good or valuable, 10 Barnew. & C. 606; Chitty, Contr. 28; as between the parties it may be equitable only.
But it need not be adequate, if only it have some real value. 3 Anstr. 732; 2 Schoales & L. Ch. Ir. 395, xi. a; 9 Yes. Ch. 246; 16 East, 372; 11 Ad. & E. 983; 1 Mete. Mass. 84. If the consideration be illegal in whole or in part, the agreement will be void. 6 Dan. Ky. 91; 3 Bibb, Ky. 500; 9 Vt. 23; 5 Penn. St. 452; 22 Me. 488. So also if the considera• tion he impossible. 5 Viner, Abr. 110, Con Coke, Litt. 206 a; Sheppard, Touchst 164. See CONSIDERATION.
The agreement may be to do any thing which is lawful, as to sell or buy real estate or personal property. But the evidence of the sale of real property must be by deed, sealed: and in most cases agreements in re gard to personal property must he reduced to writing. See STATUTE OF FRAUDS.
Or to hire or let personal estate.
The construction to be given to agreements is to be favorable to upholding them, and ac cording to the intention of the parties at the time of making it, as nearly as the meaning of the words used and the rules of law will permit. 1 Parsons, Contr. 7; 2 Kent, Comm. 555; 1 H. Blackst. 569, 614; 30 Eng. L. & E. 979; 5 hill, N. Y. 147. This intent cannot prevail against the plain meaning of words. 5 Mees. & W. Exch. 535. Neither will it be allowed to contravene established rules of law.
And that the agreement may be supported, it will be construed so as to operate in a way i somewhat different from that intended, if this will prevent the agreement from failing alto gether. 22 Pick. Mass. 376; 9 Wend. N. Y.
611; 16 Conn. 474.
Agreements are construed most strongly against the party proposing (i.e. contra pro ferentem). 6 Mees. & W. Exch. 662; 2 Par sons, Contr. 20. See CONTRACTS.
The effect of an agreement is to bind the parties to the performance of what they have thereby undertaken. In case of failure, the common law provides a remedy by damages, and equity will in some cases compel a spe cific performance.
The obligation may be avoided or destroyed by performance, which must be by him who was bound to do it; and whatsoever is neces sary to be done for the full discharge of this duty, although only incidental to it, must be done by him, 2 Parsons, Contr. 148; by acts of the party to be benefited, which either pre vent the performance, as where some act is to be done by one party before the act of the other, the second party is excused from per formance if the first fails, 15 Mees. & W. Exch. 109; 8 Q. B. 358; 6 Barnew. & C. 325; 10 East, 359; by rescission, which may be made by the party to be benefited without any provision therefor in the agreement, and the mere acquiescence of the other party will constitute sufficient mutuality to satisfy the general rule that rescission must be mutual, 4 Pick. Mass. 114; 5 Me. 277; 7 Bingb. 266; 1 Watts & S. Penn. 442; by acts of law, as confusion, merger, 29 Vt. 412; 4 Jones, No. C. 87, lapse of time, death, as when a master who has bound himself to teach an appren tice dies, or extinction of the subject-matter of the agreement ; or generally by showing that the agreement is of no validity on ac count of its lacking some of the elements es sential to an agreement. See also ASSENT;