In the case of Bernard McKenna v. Charles B. Fisk, the Supreme Court was asked to decide whether a contract between two parties could be enforced if it had been made without consideration and in violation of an existing law. The plaintiff argued that he had entered into a contract with the defendant for certain services, but that no money or other form of consideration had been given by either party at the time they agreed to enter into this agreement. Furthermore, he claimed that their agreement violated an existing state statute which prohibited such contracts from being formed without consideration. The Supreme Court ultimately held that although there may have been some evidence suggesting otherwise, there was not enough proof presented to show conclusively that any kind of valid contract existed between these two parties and thus dismissed McKenna’s claim against Fisk on those grounds alone.

In the case of Bernard McKenna v. Charles B. Fisk, Justice McLean delivered a dissenting opinion in which he argued that the plaintiff was entitled to recover damages from the defendant for breach of contract. He reasoned that although there were no express terms in the agreement between them, it could be inferred from their course of dealing and other circumstances surrounding their relationship that they had entered into an implied contract with each other. Furthermore, he maintained that since both parties had acted upon this understanding and relied on its existence to their detriment, it should be enforced by law as if it were an express agreement between them. In conclusion, Justice McLean concluded that even though there may have been some ambiguity regarding what exactly constituted a binding contract between these two individuals at this time, based on all available evidence presented before him he believed justice would best be served by allowing McKenna's claim against Fisk to proceed so as to protect his rights under such an implied arrangement