Consideration as an element of a valid contract

A contract must be based upon a valid consideration, in other words, mutuality of obligation. Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex. App.-Houston [1st Dist.] 2000, no pet.); see Texas Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970). Consideration is a bargained-for exchange of promises. ULICO Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 790 (Tex. 2008). Consideration consists of benefits and detriments to the contracting parties. Id. The detriments must induce the parties to make the promises and the promises must induce the parties to incur the detriments. Id. 

SOURCE: DALLAS COURT OF APPEALS - No. 05-16-00458-CV - 8/8/2017   
CASE STYLE: Chatelain v. GIDEON MATH & READING LLC, Tex: Court of Appeals, 5th Dist. 2017 (single issue appeal on enforceability of alleged contract, declaratory judgment claim vs breach of contract claim in the summary judgment context) 

SUSAN CHATELAIN, Appellant,
v.
GIDEON MATH & READING LLC, Appellee.

No. 05-16-00458-CV.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed August 8, 2017.

Affirmed in part, and Reverse and Remand in part.

Before Justices Bridges, Myers, and Brown.

MEMORANDUM OPINION

Opinion by Justice DAVID L. BRIDGES.

Susan Chatelain appeals the trial court's summary judgment in favor of Gideon Math & Reading LLC on Chatelain's claims under a licensing agreement. 

In a single issue, Chatelain argues the trial court erred in holding there was not an enforceable agreement between her and Gideon. 

We affirm the trial court's judgment in part, reverse in part, and remand for further proceedings.

Chatelain operates a business providing educational instruction in math and reading in McKinney, Texas. Gideon produces proprietary materials for use by its franchisees and licensees in providing educational instruction. Prior to the formation of Gideon, the business was a sole proprietorship. Gideon was formed on October 14, 2010 and, on June 13, 2011, Gideon Learning, LLC was formed, and the research and development, publication, and sales of Gideon's material was transferred to Gideon Learning. In the beginning, there were no agreements between Gideon and customers purchasing its materials for use in after-school learning centers. Prior to the formation of the Gideon entity, Gideon used a form agreement contract which provided parties would not copy material from Gideon's "Do Not Copy" list; would "pay $20,000 for new Gideon Center fee + materials for opening kit"; and would be available for three days of training in Dallas. In exchange, Gideon agreed to provide a current manual with the Do Not Copy list; send a Gideon representative to the center for training; provide three days' free training in Dallas and unlimited access by phone and email; give notice of changes to the curriculum and "give ability to re-order; and "Will not allow any new centers to open within ten minutes of your center."

As alleged in Chatelain's original petition, In January 2012, Gideon and Chatelain entered into a license agreement "for the purpose of granting to [Chatelain] the right to use Gideon Materials and display the Gideon Marks" at Chatelain's business. The agreement granted Chatelain "a non-exclusive, non-transferable, personal license" to use the Gideon materials and display the Gideon Marks at her place of business only. Gideon retained sole ownership of the materials and marks and Chatelain agreed she was "not entitled to copy, store electronically, print, or sell" the materials or marks except for certain specified materials listed in an exhibit. Chatelain further agreed to run her business "with adequate lighting, working and clean bathrooms, clean student workrooms, a clean waiting room, adequate and appropriate furniture, and in a safe manner." In return, Gideon agreed not to place another licensee "within a ten (10) minute driving time from your Location." Upon termination of the agreement, Chatelain agreed to stop using the marks and materials, immediately return the materials to Gideon or sell them to another licensee with Gideon's approval, and provide proof of any sale to Gideon. Chatelain retained no right to the materials or marks upon termination of the agreement. Gideon did not charge Chatelain any fees in connection with the signing of the agreement.

In 2013, Gideon opened a learning center which Chatelain claimed was within ten minutes of her location. Gideon responded that the ten minute restriction "is determined by reference to Google maps at the time the new center is introduced." Chatelain took no further action. Chatelain's petition alleged that, in April 2015, Gideon was opening another new location within ten minutes from her location. Chatelain sought declaratory judgment as to the "rights, status, or other legal relations under the License Agreement between the parties." Chatelain also alleged claims for breach of contract, injunctive relief, and attorney's fees.

In December 2015, Gideon filed a motion for summary judgment seeking traditional summary judgment on the grounds that there was no genuine issue of material fact precluding judgment in favor of Gideon because the license agreement is a unilateral contract and unenforceable. Gideon also moved for no-evidence summary judgment on the ground that there was no evidence of an enforceable contract, no consideration for the license agreement, and no damages proximately caused by the alleged breach. Gideon argued further that, without an enforceable contract, Chatelain had no claims for declaratory judgment, injunction, or attorney's fees.

As the specific grounds for no-evidence summary judgment, Gideon alleged Chatelain was not able to show: (1) a valid, enforceable contract exists; (2) any contract is supported by consideration; (3) [Gideon] breached the agreement; (4) [Chatelain] suffered any damage; or (5) any breach by [Gideon] was the proximate cause of any injury sustained. Gideon alleged certain "undisputed summary judgment facts" including the assertion nothing was requested in return for the license agreement and a 10% discount was offered for those that would sign and return the license agreement. This assertion was supported by a letter attached to the motion indicating that, in January 2012, Gideon was "moving into franchising all new centers" and requested that all current licensees sign the license agreement by January 31, 2012. In exchange, Gideon offered a 10% discount on online store purchases from the time the licensee signed the agreement until July 1, 2012.

In further support of its motion, Gideon asserted Chatelain did not pay anything of value to Gideon in exchange for the license agreement; Chatelain is free to terminate the license agreement at any time; Chatelain has no obligation to purchase any materials from Gideon under the license agreement; Chatelain did not have to change any aspect of the way she ran her business when she signed the license agreement; and Chatelain has no obligations under the license agreement that are not illusory because she can simply walk away from the relationship with Gideon without any cost or penalty. Based on these facts, Gideon asserted the license agreement is unilateral because Chatelain has no obligation that is not illusory.

Gideon also argued the license agreement is not supported by sufficient consideration because Chatelain paid nothing for the license, paid no royalties, and took on no obligations she did not already have under the license agreement. To the extent the license agreement contained a covenant not to compete, Gideon argued the license agreement did not meet the criteria required of an enforceable covenant not to compete. Regarding Gideon's use of Google maps to determine drive times, Gideon argued Chatelain had waived the issue by continuing her relationship with Gideon after learning in 2013 that Gideon used Google maps, and quasi-estoppel barred Chatelain from disputing the use of Google maps by accepting the use of Google maps in 2013. Finally, Gideon sought a declaratory judgment that the license agreement was not enforceable.

In January 2016, Chatelain filed a response to Gideon's motion for summary judgment arguing the licensing agreement was enforceable but, even if it were not, Gideon should be estopped from denying the enforceability of its own agreement. Chatelain argued she "purchased her materials from [Gideon] and exhibited [Gideon's] sign or trademark to generate business." Gideon sold educational materials to Chatelain and did not argue that the licensing agreement was unenforceable when Chatelain complained about the proximity of a new center. Instead, Gideon argued that the new center was in compliance with the terms of the agreement. Chatelain argued the licensing agreement "confers upon [Chatelain] the right to use materials developed and sold by [Gideon] as long as [Chatelain] complies with various terms and conditions, none of which [Chatelain] has been accused of violating." As long as she abides by the terms of the license agreement and buys Gideon's materials, Chatelain argued, she has the right to operate under the Gideon name, a name which has value. In support of her response, Chatelain attached the deposition testimony of Stephanie Coppedge, Gideon's managing member, who testified she believes "there is some value to the name Gideon Math & Reading and the instructional system" it employs, and she had "25 or 26 other people who agree with [her] and use [her] system and buy [her] materials to tutor and instruct people."

In May 2016, the trial court signed a final judgment granting Gideon's motion for summary judgment and declaring "that the License Agreement attached hereto is not enforceable as a matter of law on the grounds that the agreement is unilateral and [Chatelain's] promises are illusory, and because it is not supported by sufficient consideration." This appeal followed.

In a single issue, Chatelain argues the trial court erred in holding there was not an enforceable agreement between her and Gideon. As a result, she argues, the trial court erred in granting summary judgment in favor of Gideon.

[summary judgment standards omitted] 

A contract must be based upon a valid consideration, in other words, mutuality of obligation. Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex. App.-Houston [1st Dist.] 2000, no pet.); see Texas Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970). Consideration is a bargained-for exchange of promises. ULICO Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 790 (Tex. 2008). Consideration consists of benefits and detriments to the contracting parties. Id. The detriments must induce the parties to make the promises and the promises must induce the parties to incur the detriments. Id.

Here, the summary judgment evidence showed Gideon essentially required all licensees, including Chatelain, to enter into the license agreement in 2012. As an incentive to sign the license agreement by a particular date, Gideon offered a discount on purchases from Gideon's online store. Under the license agreement, Chatelain could purchase educational materials from Gideon and use them within certain limitations, but the materials and Gideon's mark remained Gideon's property, and Chatelain was required to return all materials to Gideon if the license agreement was terminated. The agreement also required Chatelain to maintain her business in a certain way. In return, Gideon agreed not to place another licensee within a ten minute driving time from Chatelain's location. Gideon did not charge any fees in connection with the signing of the agreement, but the purpose of the agreement was to govern sales of Gideon's educational materials and use of Gideon's mark, which Gideon's managing member agreed had value. Under these circumstances, we conclude Chatelain produced more than a scintilla of probative evidence to raise a fact issue on the questions of whether a valid, enforceable contract existed between Gideon and Chatelain and whether the agreement was supported by consideration. King Ranch, 118 S.W.3d at 750. Because fact issues exist as to the agreement's validity and enforceability, we reject Gideon's argument that the agreement, to the extent it created a restraint on trade, was unenforceable because it was not ancillary to an otherwise enforceable contract.

Gideon argues the licensing agreement imposes on Chatelain no obligations that are not illusory because she can simply walk away from the relationship with Gideon without any cost or penalty. Even though a contract is terminable at will, until terminated, the contract is valid and subsisting. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989). 

Further, if Chatelain walks away from her relationship with Gideon, she must return Gideon's educational materials and stop using Gideon's mark, both of which the evidence shows have value. 

We conclude fact issues preclude summary judgment on the issue of whether Chatelain's obligations under the agreement were illusory. See King Ranch, 118 S.W.3d at 750.

Chatelain sought a declaratory judgment regarding her "rights, status, or other legal relations" under the licensing agreement. Gideon argues Chatelain presented no evidence of damages. 

A declaratory judgment, by its nature, is forward looking; it is designed to resolve a controversy and prevent future damages. Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 660 (Tex. 2009). It affects a party's behavior or alters the parties' legal relationship on a going-forward basis. Id. An action to declare rights is not an action for money damages. Id. 

We sustain Chatelain's issue to the extent she argues summary judgment was improper on her declaratory judgment and injunctive relief claims.

Gideon argues Chatelain "produced no evidence at all to prove the elements of an enforceable agreement supported by sufficient consideration, a breach, damages or proximate cause with respect to her breach of contract claim." 

Gideon's no-evidence motion for summary judgment asserted Chatelain presented no evidence that she suffered any damage or that any breach by Gideon was the proximate cause of any injury sustained. 

The elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.-Dallas 2014, no pet.). Chatelain's petition alleged she had "suffered significant actual damages" and sought "compensatory damages" as a result of Gideon's alleged breach of contract. Chatelain's petition did not further address the damages issue. 

In her response to Gideon's motion for summary judgment, Chatelain presented no evidence to show what damages she incurred, if any, as a result of Gideon's alleged breach of contract. When presenting summary judgment proof in response to a no-evidence motion, a party must specifically identify the supporting proof on file that it seeks to have considered by the trial court. See Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.-San Antonio 2006, no pet.); see also TEX. R. CIV. P. 166a(i) cmt. ("To defeat a motion made under paragraph (i), . . . [a nonmovant's] response need only point out evidence that raises a fact issue on the challenged elements."). Accordingly, we conclude the trial court did not err in granting no-evidence summary judgment on Chatelain's breach of contract claim. See King Ranch, 118 S.W.3d at 750. We overrule Chatelain's issue to the extent she challenges the trial court's summary judgment on her breach of contract claim.

We affirm the trial court's summary judgment on Chatelain's breach of contract claim for failure to show evidence of damages. In all other respects, we reverse the trial court's judgment and remand for further proceedings.

JUDGMENT

In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's summary judgment on the declaratory judgment claim, the claim for injunctive relief, and the claim for attorney's fees by appellant Susan Chatelain. In all other respects, the trial court's judgment is AFFIRMED. 

We REMAND this cause to the trial court for further proceedings consistent with this opinion.

It is ORDERED that each party bear its own costs of this appeal.

Contract Modification must also be supported by consideration

Modification of contract terms also requires consideration, just as the original contract

CONTRACT MODIFICATION

"A modification must satisfy the elements of a contract: a meeting of the minds supported by consideration." Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 228 (Tex. 1986); see also Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 314 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).

Consideration is defined as "either a benefit to the promisor or a loss or detriment to the promisee." N. Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998) (quoting Receiver for Citizen's Nat'l Assurance Co. v. Hatley, 852 S.W.2d 68, 71 (Tex. App.-Austin 1993, no writ)).

SOURCE: HOUSTON COURT OF APPEALS - No. 01-11-00800-CV – 2/28/2013
 

Lack of consideration vs. failure of consideration: important differences

     

THIS ISSUE OF CONSIDERATION IN THE CONTEXT OF A CONTRACT DISPUTE

  

A want or lack of consideration is different from a failure of consideration. A lack of consideration occurs when a contract, at its inception, does not impose obligations on both parties. See Burges v. Mosley, 304 S.W.3d 623, 628 (Tex. App.-Tyler 2010, no pet.). Without a mutuality of obligation, a contract is unenforceable. Id. In contrast, a failure of consideration occurs when, because of some supervening cause arising after the contract is formed, the promised performance fails. Id.

 

In this case, there is no dispute that the lease, as written, imposed obligations on both parties; Cheung-Loon was required to provide Primo's with use of the parking lot at 3321 McKinney Avenue and appellees were required to, among other things, pay rent for Primo's use of the lot. Appellees provided no evidence that the contract was unenforceable due to a lack of consideration at its inception.  Accordingly, the trial court erred in failing to grant Cheung-Loon a no-evidence summary judgment on the affirmative defense of want of consideration.

 

A failure of consideration occurring after a contract's inception constitutes a defense to an action on the written agreement. See McGraw v. Brown Realty Co., 195 S.W.3d 271, 276 (Tex. App.-Dallas 2006, no pet.). The affirmative defense defeats summary judgment if the nonmovant presents evidence that it did not receive the consideration set forth in the agreement. Id. 
  
A failure of consideration may be either partial or total. A total failure of consideration is ground for cancellation or recission of the contract. See Food Mach. Corp. v. Moon, 165 S.W.2d 773, 775 (Tex. Civ. App.-Amarillo 1942, no writ). 
  
A partial failure of consideration will not invalidate the contract and prevent recovery thereon, but is a defense pro tanto. See Huff v. Speer, 554 S.W.2d 259, 263 (Tex. Civ. App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.).

 

The dispute here centers on whether Primo's was able to use the parking lot to the extent it bargained for. Appellees provided evidence that, one year into the lease term, Cheung-Loon's other tenants began using most, if not all, of the parking spaces in the lot Primo's leased for its own use. Even if Primo's was not entitled to exclusive use of the lot, which we do not decide, the lease clearly entitled it to use the lot for its customers' parking. Because appellees provided some evidence showing it was either totally or partially prevented from using the lot, we conclude appellees raised a fact issue on failure of consideration. Accordingly, the trial court correctly denied Cheung-Loon's motion for a no-evidence summary judgment on this affirmative defense. Furthermore, because appellees raised a fact issue on this affirmative defense, the trial court correctly denied Cheung- Loon's motion for summary judgment on its claim for breach of contract.

 

SOURCE: DALLAS COURT OF APPEALS - 05-10-01171-CV – 5/15/12

ADDITIONAL CASELAW SNIP ON CONSIDERATION AND FAILURE OF CONSIDERATION 

"Consideration is defined as `either a benefit to the promisor or a loss or detriment to the promisee.'" Northern Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998) (quoting Receiver for Citizen's Nat'l Assurance Co. v. Hatley, 852 S.W.2d 68, 71 (Tex. App.-Austin 1993, no writ)). A promissory note given "for value" is supported by adequate consideration and is therefore enforceable. Suttles v. Thomas Bearden Co., 152 S.W.3d 607, 615 (Tex. App.-Houston [1st Dist.] 2004, no pet.). 
  
A promissory note is issued for "value" if it is issued as payment of, or as security for, an antecedent claim against any person, whether or not the claim is due. Id.; see also Ward v. Vaughn, 298 S.W.2d 862, 866-67 (Tex. Civ. App.-Galveston 1957, no writ) (explaining that forbearance of antecedent debt was sufficient consideration for note). 
  
Failure of consideration occurs when, "after an agreement has been reached, the promised performance fails." Bassett v. American Nat'l Bank, 145 S.W.3d 692, 696 (Tex. App.-Fort Worth 2004, no pet.) (holding that failure to pay amount promised by note constituted failure of consideration).  
  

Legal lingo: Consideration in the context of a contract

CONSIDERATION AS AN ESSENTIAL ELEMENT OF A VALID CONTRACT

Generally, a contract must be supported by consideration to be enforceable. Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 659 (Tex. 2006).

What constitutes consideration?

Consideration consists of a benefit to the promisor or a detriment to the promisee. N. Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998). Consideration for a promise may be either a performance or a return promise bargained for in a present exchange. Johnson, 209 S.W.3d at 659 (citing Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991); Restatement (Second) of Contracts § 71(1) (1981)).

Lack of consideration may defeat contract claim

Lack of consideration for a contract is an affirmative defense to its enforcement; therefore, [ LITIGANT ] was required to raise a fact issue on lack of consideration. See Tex. R. Civ. P. 94; Kaye/Bassman Intern. Corp. v. Help Desk Now, Inc., 321 S.W.3d 806, 814 (Tex. App.—Dallas 2010, pet. denied).

Consideration for execution of promissory note

[A] written instrument reciting a consideration imports one, and with such a recitation we presume the consideration [to be] sufficient. Hoagland v. Finholt, 773 S.W.2d 740, 743 (Tex. App.—Dallas 1989, no writ). However, parol evidence is admissible to show want or failure of consideration and establish the actual consideration given for the instrument. DeLuca v. Munzel, 673 S.W.2d 373, 376 (Tex. App.—Houston [1st Dist.] 1984, writ ref‘d n.r.e.) (citing Fire Ins. Ass’n v. Wickham, 141 U.S. 564, 579–82 (1891); Gaines Motor Sales Co. v. Hastings Mfg. Co., 104 S.W.2d 548, 551 (Tex. Civ. App.—Fort Worth 1937, writ dism‘d)).

To constitute consideration, . . . [t]he performance or return promise . . . may be given by the promisee or by some other person. Restatement (Second) of Contracts § 71 (1981) (emphasis added). ―It matters not from whom the consideration moves or to whom it goes. If it is bargained for and given in exchange for the promise, the promise is not gratuitous. Id. cmt. c.

SOURCE: Houston Court of Appeals - 14-09-00312-CV - 7/26/11 - McLernon v. Dynegy Inc.

Lack of Consideration vs. Failure of Consideration in Contract Law

FAILURE OF CONSIDERATION AFTER CONTRACT FORMATION vs. LACK OF CONSIDERATION AB INITIO (from the beginning)

Failure of consideration occurs when, due to a supervening cause after an agreement is reached, the promised performance fails. (2) See City of The Colony v. North Tex. Mun. Water Dist., 272 S.W.3d 699, 733 (Tex. App.--Fort Worth 2008, pet. dism'd); U.S. Bank, N.A. v. Prestige Ford Garland Ltd. P'ship, 170 S.W.3d 272, 279 (Tex. App.--Dallas 2005, no pet.). In other words, failure of consideration occurs because of subsequent events. See The Colony, 272 S.W.3d at 733. For example, one party's failure to perform its obligations under the agreement may result in the other party's failure to receive the consideration set forth in the agreement. See id.; U.S. Bank, 170 S.W.3d at 279. To establish the affirmative defense of failure of consideration, the defendant must offer summary-judgment proof establishing: (1) the consideration for the property at the inception of the agreement; and (2) that the consideration later failed. See, e.g., National Bank of Commerce v. Williams, 84 S.W.2d 691, 692 (Tex. 1935). 2. It is a general rule in Texas that a party must show that he has complied with his obligations under the contract to be entitled to specific performance. DiGiuseppe v. Lawler, 269 S.W.3d 588, 594 (Tex. 2008). Thus, a plaintiff seeking specific performance, as a general rule, must actually tender performance as a prerequisite to obtaining specific performance. Id. SOURCE: Austin Court of Appeals - 03-09-00713-CV - 6/3/11
 
RELATED CASELAW CLIPS FROM OTHER COURTS OF APPEALS: 

Lack of Consideration 

Consideration is a fundamental element of every valid contract. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 408 (Tex. 1997). Consideration is a present exchange bargained for in return for a promise and consists of benefits and detriments to the contracting parties. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991). The detriments must induce the parties to make the promises, and the promises must induce the parties to incur the detriments. Id. Lack of consideration occurs when the contract, at its inception, does not impose obligations on both parties. Michol O'Connor, O'CONNOR'S TEXAS CAUSES OF ACTION 86 (2009). The contract lacking consideration lacks mutuality of obligation and is unenforceable. Fed. Sign, 951 S.W.2d at 409. Lack of consideration is an affirmative defense. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex.App.-San Antonio 2005, no pet.). The existence of a written contract, however, presumes consideration for its execution. Id. Therefore, the party alleging lack of consideration has the burden of proof to rebut this presumption. Id.; see also Edlund v. Bounds, 842 S.W.2d 719, 724 (Tex.App.-Dallas 1992, writ denied) (op. on reh'g) ("A sworn plea of no consideration placed the burden of proof on Edlund to show there was none."). Only a party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense. See TEX.R. CIV. P. 166a(i).

Failure of Consideration 

Failure of consideration, an affirmative defense, occurs when, because of some supervening cause after a contract is formed, the promised performance fails. See TEX.R. CIV. P. 94; U.S. Bank, N.A. v. Prestige Ford Garland Ltd. P'ship, 170 S.W.3d 272, 279 (Tex.App.-Dallas 2005, no pet.). Above, we explained that there is a "lack of consideration" where a purported contract lacks mutuality of obligation. Thus, there is a clear distinction between "lack of consideration" and "failure of consideration." Although the issue of consideration is to be determined as a matter of law, the recital of consideration in a written instrument is not conclusive, and the nature of the real consideration may be shown by parol evidence. Lakeway Co. v. Leon Howard, Inc., 578 S.W.2d 163, 166 (Tex.Civ.App.-Tyler), writ ref'd n.r.e., 585 S.W.2d 660 (Tex.1979) (per curiam).

SOURCE: Burges v. Mosley, 304 S.W.3d 623, 628 (Tex. App.-Tyler 2010, no pet.)

Failure of consideration occurs when, due to a supervening cause after an agreement is reached, the promised performance fails. City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 733 (Tex. App.-Fort Worth 2008, pet. dism'd); U.S. Bank, N.A. v. Prestige Ford Garland Ltd. P'ship, 170 S.W.3d 272, 279 (Tex. App.-Dallas 2005, no pet.). In other words, failure of consideration occurs because of subsequent events. See City of The Colony, 272 S.W.3d at 733; U.S. Bank, N.A., 170 S.W.3d at 279. For example, one party's failure to perform its obligations under the agreement may result in the other party's failure to receive the consideration set forth in the agreement. See City of The Colony, 272 S.W.3d at 733; U.S. Bank, N.A., 170 S.W.3d at 279. There is a clear distinction between lack of consideration and failure of consideration. Burges, 304 S.W.3d at 628. In order to show a failure of consideration there should be evidence that a contract had been formed and that the performance of one of the parties failed. Id. In other words, for consideration to fail, it must have been valid at one point and later fail. Johnson v. Bond, 540 S.W.2d 516, 520 (Tex. App.-Fort Worth 1976, writ ref'd n.r.e.). Lack of consideration, on the other hand, means that there was never consideration. Id.

SOURCE: Corpus Christi Court of Appeals - 13-10-245-CV - 10/21/10

No Consideration as part of the contract to begin with 

Lack of consideration occurs when the contract, at its inception, does not impose obligations upon both parties. Burges v. Mosley, 304 S.W.3d 623, 628 (Tex. App.-Tyler 2010, no pet.). The existence of a written contract presumes consideration for its execution. Id.

Failure of consideration after the contract is entered into A failure of consideration occurs when the plaintiff fails to perform a condition precedent to the defendant's duty to perform. See Nat'l Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691, 692 (1935). The doctrine assumes the contract is already in existence. Consideration consists of either a benefit to the promisor or a detriment to the promisee. See Tamez v. Southwestern Motor Transp., Inc., 155 S.W.3d 564, 571 (Tex. App.-San Antonio 2004, no pet.).

SOURCE: El Paso Court of Appeals - 08-07-00090-CV – 2/10/10 - 323 S.W.3d 203 (2010)