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Contract I. Contract I.
Contract I.
Contract I.
ALLEGHENY4
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ALLEGHENY4
We think the duty assumed by the plaintiff to perpetuate the name of the founder of the memorial is sufficient in itself to give validity to the subscription within the rules that define consideration for a promise of that order. When the promisee subjected itself to such a duty at the implied request of the promisor, the result was the creation of a bilateral agreement.... There was a promise on the one side and on the other a return promise, made, it is true, by implication, but expressing an obligation that had been exacted as a condition of the payment. A bilateral agreement may exist though one of the mutual promises be a promise 'implied in fact,' an inference from conduct as opposed to an inference from words. We think the fair inference to be drawn from the acceptance of a payment on account of the subscription is a promise by the college to do what may be necessary on its part to make the scholarship effective. The plan conceived by the subscriber will be mutilated and distorted unless the sum to be accepted is adequate to the end in view. Moreover, the time to affix her name to the memorial will not arrive until the entire fund has been collected. The college may thus thwart the purpose of the payment on account if at liberty to reject a tender of the residue. It is no answer to say that a duty would then arise to make restitution of the money. If such a duty may be imposed, the only reason for its existence must be that there is then a failure of 'consideration.' To say that there is a failure of consideration is to concede that a consideration has been promised, since otherwise it could not fail. No doubt there are times and situations in which limitations laid upon a promisee in connection with the use of what is paid by a subscriber lack the quality of a consideration, and are to be classed merely as conditions. 'It is often difficult to determine whether words of condition in a promise indicate a request for consideration or state a mere condition in a gratuitous promise.' 'An aid, though not a conclusive test in determining which construction of the promise is more reasonable is an inquiry whether the happening of the condition will be a benefit to the promisor.' 'If so, it is a fair inference that the happening was requested as a consideration.' Such must be the meaning of this transaction unless we are prepared to hold that the college may keep the payment on account, and thereafter nullify the scholarship which is to preserve the memory of the subscriber. The fair implication to be gathered from the whole transaction is assent to the condition and the assumption of a duty to go forward with performance. The subscriber does not say: I hand you $1,000, and you may make up your mind later, after my death, whether you will undertake to commemorate my name.
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1 We think the duty assumed by the plaintiff to perpetuate the name of the founder of the memorial is sufficient in itself to give validity to the subscription within the rules that define consideration for a promise of that order. 2 When the promisee subjected itself to such a duty at the implied request of the promisor, the result was the creation of a bilateral agreement.... 3 There was a promise on the one side and on the other a return promise, made, it is true, by implication, but expressing an obligation that had been exacted as a condition of the payment. 4 A bilateral agreement may exist though one of the mutual promises be a promise 'implied in fact,' an inference from conduct as opposed to an inference from words. 5 We think the fair inference to be drawn from the acceptance of a payment on account of the subscription is a promise by the college to do what may be necessary on its part to make the scholarship effective. 6 The plan conceived by the subscriber will be mutilated and distorted unless the sum to be accepted is adequate to the end in view. 7 Moreover, the time to affix her name to the memorial will not arrive until the entire fund has been collected. 8 The college may thus thwart the purpose of the payment on account if at liberty to reject a tender of the residue. 9 It is no answer to say that a duty would then arise to make restitution of the money. 10 If such a duty may be imposed, the only reason for its existence must be that there is then a failure of 'consideration.' 11 To say that there is a failure of consideration is to concede that a consideration has been promised, since otherwise it could not fail. 12 No doubt there are times and situations in which limitations laid upon a promisee in connection with the use of what is paid by a subscriber lack the quality of a consideration, and are to be classed merely as conditions. 13 'It is often difficult to determine whether words of condition in a promise indicate a request for consideration or state a mere condition in a gratuitous promise.' 14 'An aid, though not a conclusive test in determining which construction of the promise is more reasonable is an inquiry whether the happening of the condition will be a benefit to the promisor.' 15 'If so, it is a fair inference that the happening was requested as a consideration.' 16 Such must be the meaning of this transaction unless we are prepared to hold that the college may keep the payment on account, and thereafter nullify the scholarship which is to preserve the memory of the subscriber. 17 The fair implication to be gathered from the whole transaction is assent to the condition and the assumption of a duty to go forward with performance. 18 The subscriber does not say: I hand you $1,000, and you may make up your mind later, after my death, whether you will undertake to commemorate my name.