But this argument is a fallacy. Clearly the delivery would be
sufficient consideration to enable the owner to declare in
assumpsit for the breach of those duties which [291] arose,
irrespective of contract, from the defendant's having undertaken
to deal with the thing. /1/ It would be a sufficient
consideration for any promise not involving a dealing with the
thing for its performance, for instance, to pay a thousand
dollars. /2/ And the law has not pronounced the consideration
good or bad according to the nature of the promise founded upon
it. The delivery is a sufficient consideration for any promise.
/3/
The argument on the other side leaves out of sight the point of
time at which the sufficiency of the consideration is to be
determined. This is the moment when the consideration is
furnished. At that moment the delivery of the cask is a detriment
in the strictest sense. The owner of the cask has given up a
present control over it, which he has a right to keep, and he has
got in return, not a performance for which a delivery was
necessary, but a mere promise of performance. The performance is
still future. /4/
But it will be seen that, although the delivery may be a
consideration, it will not necessarily be one.
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