In the case of James Foster and Pleasants Elam, Plaintiffs in Error vs. David Neilson, Defendant in Error, the Supreme Court was asked to decide whether a contract between two parties could be enforced if it had been made without consideration. The plaintiffs argued that they had entered into an agreement with Neilson for him to pay them $2,000 for their services as overseers on his plantation. They claimed that he failed to fulfill this obligation and sought payment from him through legal action. The defendant denied any such agreement existed or that he owed anything to the plaintiffs because there was no consideration given by either party when entering into the contract. Ultimately, after reviewing all evidence presented before them, including testimony from witnesses who were present at the time of making said agreement between both parties involved;the court ruled in favor of Plaintiff's argument stating that verbal contracts are binding even without consideration being exchanged so long as there is sufficient proof provided by both sides showing mutual assent and intention to enter into such an arrangement .

In the case of James Foster and Pleasants Elam, Plaintiffs in Error vs. David Neilson, Defendant in Error, Chief Justice Marshall delivered a dissenting opinion which argued that the court should not have granted judgment for the defendant on an assumpsit count. He reasoned that although there was no evidence to support it, this action could be maintained if it were brought as a covenant or debt instead of assumpsit. Furthermore, he noted that even though there was no proof of consideration given by either party at any time before suit was filed against them by Neilson's assignee (the plaintiff), such consideration may still exist under certain circumstances and thus should not be disregarded without further inquiry into its existence. Finally, he concluded that since both parties had been sued together on one count - assumpsit - they must also stand or fall together with respect to all other counts; therefore granting judgment for only one side would be unjustified and contrary to established legal principles.