Sec 519

It is also to be observed that while courts will not undertake to determine prices, a consideration that is necessarily and absolutely valueless will be regarded as insufficient.3 Hence a covenant by a grantee of land that he will build on the land such a house as he thought fit, as it does not bind him to anything, is not a sufficient consideration to sustain the deed against subsequent purchasers for value from the grantor;4 and so, as we have seen, it has been held that a promise to do what a party is already bound to do is no consideration for a promise in return.5 And utter inadequacy may lead to the inference of fraud.6

Sec 520

When the consideration on which a promise is made fails absolutely, then the promise becomes inoperative. This is the case when, after the bargain, the Consideration utterly valueless is invalid.

Money paid on failure of considessential character of the consideration is destroyed;1 supposing that this is not attributable in any way to the misconduct of the promisor;2 or that the risk is not one against which he guarantees.3 The acceptance, by the receiver, of money on any kind of trust, exposes him to a suit for its recovery, the trust being a sufficient consideration.4 Hence, when the consideration totally fails, and there is a warranty either express or implied, the purchaser is entitled to rescind, and recover back the price.5 This is a fortiori the case where there is a breach of warranty of title.6 And a promise made under a mistake as to legal liability, when such mistake is the consideration of the promise, is inoperative from failure of consideration.7 - Even where there is no express warranty of title, the prevalent opinion is, that a party selling goods as his own gives an implied warranty of title;8 and that total failure of title is a defence to a suit for purchase money.9 - It has also been held, that the price of goods sold which the seller fails to deliver may be recovered back;10 and so of money paid as a deposit on application for shares in a projected company which is subsequently abandoned;11 and so of money paid to a corporation on an undertaking which eration may be recovered back.

1 Supra, sec 165, 239 et seq.; Bis-pham's Eq. sec 374; 2 Ch. on Con. 11th Am. ed. 31; 1 Sug. V. & P. 8th Am. ed. 275; Tennent v. Tennent, L. R. 2 Sc. Ap. 6; Falcke v. Gray, 4 Drew. 651; Willard v. Tayloe, 8 Wal. 557; Howard v. Edgell, 17 Vt. 9; Kidder v. Chamberlin, 41 Vt; 62; Osgood v. Franklin, 2 Johns. Ch. 23; 14 Johns. 527; Seymour v. Delancy, 3 Cow. 445; Hough v. Hurst, 2 Ohio, 495; Williams v. Powell, I Ired. Eq. 460; Butler v. Haskell, 4 Dessaus. 651; Gasque v. Small, 2 Strobh. 72.

2 Kelley v. Caplice, 23 Kan. 474; see also Botkin v. Livingston, 21 Kan. 232, as another case of an unconscionable bargain.

3 Ch. on Con. 11th Am. ed. 29; Sykes v. Dixon, 9 Ad. & E. 693; Cabot v. Has-kins, 3 Pick. 83; Pfeiffer v. Adler, 37 N. Y. 164; Maull v. Vaughan, 45 Ala. 134.

4 Rosber v. Williams, L. R. 20 Eq. 210.

5 Supra, sec 500.

6 Supra, sec 165, 239.

1 Supra, sec 300.

2 Supra, sec 309.

3 Supra, sec 361.

4 Whitehead v. Greetham, 2 Bing. 464; Shillibeer v. Glyn, 2 M. & W. 143.

5 Infra, sec 521, 742 et seq.; Benj. on Sales, 3d Am. ed. sec 423; Giles v. Edwards, 7 T. R. 181; Howe Machine Co. v. Willie, 85 111. 333. That this is the case with money paid on an abandoned adventure, see infra, sec 742; and with money paid for worthless securities, see infra, sec 744.

6 Infra, sec 746; supra, sec 214; Eichholz v. Banister, 17 C. B. N. S. 708; Chapman v. Speller, 14 Q. B. 621.

7 Supra, sec 177 et seq.; infra, sec 747; Warder v. Tucker, 7 Mass. 449; Cabot v. Haskins, 3 Pick. 83. As to error in law, see supra, sec 198 et seq.

8 Supra, sec 230; infra, sec 742 et seq.

9 Mete, on Cont. 219; Tillotson v. Grapes, 4 N. H. 448; Rice v. Goddard, 14 Pick. 293; Bierce v. Stocking, 11 Gray, 174; Trask v. Vinson, 20 Pick. 110; Cook v. Mix, 11.Conn. 432; Fris-bee v. Hoffnagle, 11 Johns. 50; Tyler v. Young, 2 Scam. 447; Logan v. Matthews, 6 Barr,. 417; Geiger v. Cook, 3 W. & S. 266; Davis v. Mc-Vickers, 11 111. 327; People v. Sisson, 98 111. 335; Sturgis Bk. v. Peck, 8 Kan. 660; see to the question of recovery on failure, of title, supra, sec 214; infra, sec 746, 919:.

10 Devaux v. Conolly,8 C. B. 640; see supra, sec 190 et seq., 300.

11 Walstab v. Spottiswoode, 15 M. & W. 501; Johnson v. Goslett, 3 C. B. N. S. 569; Watson v. Charlemont, 12 Q. B. 856; infra, sec 742.

was ultra vires;1 and so of money paid on void bills, or on bills or securities turning out to have been forged;2 and so of money paid for articles turning out to be valueless.3 But a party who buys on a speculation which fails cannot, in cases where there was no fraud or imposition, either refuse to pay for the thing purchased, or recover back its price if paid, because it turns out not to be what he expected.4 - Whether on a partial failure of consideration there can be a recovery back will be hereafter considered.5