A sufficient consideration for the agree ment must exist ; 2 Bla. Com. 444 ; 2 Q. B. 851; 5 Ad. & E. 548 ; as against third par ties this consideration must be good or valu able; 10 B. & C. 606; as between the par ties it may be equitable only; 1 Pars. Contr. 431.
But it needt not be adequate, If only it have some real value ; 2 Sch. & L. 395, n. a; 11 Ad. & E. 983 ; Hubbard v. Coolidge, r Mete. (Mass.) 84; Judy v. Louderman, 48 Ohio St. 562, 29 N. E. 181, refraining from use of tobacco and liquor for a period Is sufficient consideration for a promise to pay the party a sum of mon ey ; Hamer v. Sidway, 124 N. Y. 538, 27 N. B. 256, 12 L. R. A. 463, 21 Am. St. Rep. 693.
If the consideration be illegal in whole or in part, the agreement will be void; Donallen v. Lennox, 6 Dana (Ky,) 91; Town of Hines burgh v. Sumner, 9 Vt. 23, 31 Am. Dec. 599 ; Filson's Trustees v. Rimes, 5 Pa. 452, 47 Am. Dec. 422 ; Deering v. Chapman, 22 Me. 488, 39 Am. Dec. 592 ; Ashbrook v. Dale, 27 Mo. App. 649; Smith v. Steely, 80 Ia. 738, 45 N. W. 912. A contract to regulate the price of commodities at a certain specified amount is a contract in restraint of trade, without con sideration and cannot be enforced ; 63 Law T. 455; Vulcan Powder Co. v. Powder Co., 96 Cal. 510, 31 Pac. 581, 31 Am. St. Rep. 242 ; so also if the consideration be impossible; 5 Viner,- Abr. 110, Condition; Co. Litt. 206 a; Shepp. Touchst. 164; L. R. 5 C. P. 588; 2 Lev. 161. See CONSIDERATION.
The agreement may be to do anything which is lawful, as to sell or buy real estate or personal property. But the evidence of the sale of real property must generally be by deed, sealed ; and in many cases agree ments in regard to personal property must be in writing. See STATUTE OF FRAUDS.
The construction to be given to agree ments is to be favorable to upholding them, and according 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; 2 Kent 555 ; 1 H. Bla. 569, 614 ; 30 Eng. L. & E. 479 ; Potter v. Ins. Co., 5 Hill (N. Y.) 147; Ricker v. Fairbanks, 40 Me. 43 ; 10 A. & E. 326 ; Thrall v. New ell, 19 Vt. 202, 47 Am. Dec. 682. This in tent cannot prevail against the plain mean ing of words; 5 M. & W. 535. Neither will it be allowed to contravene established rules of law.
And that the agreement may be support ed, it will be construed so as to operate in a way somewhat different from that intended, if this will prevent the agreement from fail ing altogether; Brewer v. Hardy, 22 Pick.
(Mass.) 376, 33 Am. Dec. 747 ; Rogers v. Fire Co., 9 Wend. (N. Y.) 611; Bryan v. Bradley, 16 Conn. 474.
Agreements are construed most strongly against the party proposing (i. e., contra pro ferentem); 6 M. & W. 662 ; 2 Pars. Contr. 20 ; 3 B. & S. 929 ; Deblois v. Earle, 7 R. I. 26. See CONTRACTS.
The effect of an agreement is to bind the parties to the performance of what they have thereby undertaken. In case of fail ure, the common law provides a remedy by damages, and equity will in some cases com pel a specific performance.
The obligation may be avoided or destroy ed by performance (q. v.), which must be by him who was bound to do it; and whatso ever is necessary to be done for the full dis charge of this duty, although only incidental to it, must be done by him ; 11 Q. B. 368; 4 B. & S. 556; Fauble v. Davis, 48 Ia. 462; Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57; by tender of exact performance accord ing to the terms of the contract, which is sufficient when the other party refuses to accept performance under the contract; 6 M. & G. 610 ; Benj. Sales 563 ; Ans. Contr. 274; an agreement to pay a sum of money upon receipt of certain funds is not broken on refusal to pay on receipt of part of the funds ; Fox v. Walker, 62 N. H. 419; by acts of the party to be benefited, which pre vent the performance, or 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 M. & W. 109; 8 Q. B. 358; 6 B. & C. 325; 10 East 359; by rescission (q. v.), which may be made by the party to be benefited, without any provision therefor in the agreement, and the mere ac quiescence of the other party will be evi dence of sufficient mutuality to satisfy the general rule that rescission must be mutual; Hill v. Green, 4 Pick. (Mass.) 114 ; Quincy v. Tilton, 5 Greenl. (Me.) 277; 1 W. & S. 442; rescission, before breach, must be by agree ment; Leake, Contr. 787; 2 H. & N. 79; 6 Exch. 39; by acts of la/to, as confusion, merger ; Baxter v. Downer, 29 Vt. 412; death, as when a master who has bound himself to teach an apprentice dies; inability to per form a personal service, such as singing at a concert ; L. R. 6 Exch. 269 ; or ewtinctian of the subject-matter of the agreement. See also ASSENT; CONTRACT; DISCHARGE OF CON TRACTS; PARTIES; PAYMENT; RESCISSION.