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75. Contractual obligations as consideration.— The promise to perform an existing contract is not a consideration. There is no legal detriment, and the promisor agrees to do what he is bound to do by virtue of the existing contract.34 This is the weight of American authority.

A different case is said to arise where A abandons a contract, because, for instance, he is losing money on its performance. B then promises to pay A an extra sum if he will perform the contract. It would seem that when A performs, he is only doing what he is bound to do under the first contract, and that his promise to perform is no consideration. But some courts hold that since A can actually abandon the contract, and not perform (although he is liable in damages), to give up this power to abandon is a consideration for a promise for extra compensation.35

In Bowman v. Wright, a tenant was about to abandon certain premises which he held under a lease. He expected to pay rent, however, for the unexpired term. In order to save his insurance policy, because of a provision limiting liability in case the premises were vacated, the landlord agreed to lower the rent if the tenant would remain in occupancy. It was held that, although the lease called for a higher rent, this promise to remain (an act the tenant was not bound to do) was a consideration for the lower rent.

In personal service contracts, to constitute a new consideration for another agreement, there must also

34 Phoenix Ins. Co. v. Rink, 110 Ill. 538.

35 King v. Ry., 61 Minn. 482.

36 65 Nebr. 661.

be some act which B is not bound to do by virtue of his contract. Where a seaman was promised extra wages to remain with a ship, which part of the crew deserted, he could not recover for the extra compensation, because it was his duty under the original contract to assist in working the vessel home.37 But had he agreed to do something in addition to his original contract, he could have recovered. Thus, in Turner v. Owen,38 the master offered the crew additional wages to remain on an unseaworthy vessel. This, the court held, they were not bound to do under their contract for service, and the plaintiff was thereby permitted to recover. The consideration was sufficient.

76. Promises to third persons.-There is a division of the authorities as to whether or not a promise by a party of a contract to a third person to perform the contract is a consideration for the promise of the third person. Where A agrees with C, for the sum of $100, to perform his abandoned contract with B, there is said to be a consideration. Although A is bound by a contract with B, and a promise to B to perform would not be a consideration, yet where A promises C to do something he is not bound to do by any obligation to C (although it be an obligation to B), there may be a consideration.39

In Shadwell v. Shadwell,40 A wrote to C, his uncle, announcing his engagement to B. C wrote: "As I promised you I will pay you £500 a year until your

37 Stilk v. Myrick, 2 Camp. 317 (Eng.).

38 3 F. & F. 176 (Eng.).

39 See 12 Harvard Law Review 520.

40 30 L. J. C. P. 145 (Can.).

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income as a chancery solicitor reaches that sum.' After A married he sued C on the annuity promise. He was permitted to recover, although he had merely carried out the contract of marriage he had previously made with B.

77. Mutual promises. It is said that mutual promises constitute a consideration for each other. This is true in so far as the promises, if carried out, will result in a legal detriment. If A promises B $250, if B will promise to release his entire claim of $275, there is an exchange of promises, but the agreement is not binding, since A's promise when completed would merely be an act which he was already bound to perform. But if A promised to deliver B a table in return for B's promise of a release, there would be a consideration, for in the delivery of the table A is promising to do what he is not bound to do. This is a legal detriment.

78. Compositions with creditors.-An exception to the rule that all contracts must be supported by a consideration exists in the agreement of a debtor, who is in financial difficulty, to pay his creditors less than the full sum due in full satisfaction of their claims. The general rule, it will be remembered, would not regard a promise to accept less than the whole sum as a consideration, because the debtor promises to do what he is already bound to donamely, to pay. But in the case of a composition with creditors, the agreement of all of the creditors to accept less than the full amount of the debts, and the promise to pay by the debtor, are said to constitute a contract. This view is based on the theory

that the consideration is the undertaking by the debtor to obtain the consent of all of the creditors to the composition. Some courts regard the mutual agreements of the creditors with each other for the benefit of the debtor as the consideration.41 Bankruptcy act discharges are based upon the express provisions of law, and not upon contract; hence, the question of consideration is not involved.

79. Present and past considerations.-The consideration must be present. It must be some detriment to the promisee at the time of and in exchange for the promise of the promisor. Something done or given or forborne in the past will not suffice. The law declares that a past consideration will not support a promise.*2

"A past consideration is some act or forbearance in time past by which a man has benefited without thereby incurring any legal liability. If afterwards, whether from good feeling or interested motives, he makes a promise to the person by whose act or forbearance he has benefited, and that promise is made upon no other consideration than the past benefit, it is gratuitous and cannot be enforced; it is based upon motive, and not upon consideration." 43

44

In Roscorla v. Thomas, A contracted to sell B a horse. Later, B refused to accept the horse unless A warranted its age and disposition. A promised accordingly, and B sued upon that promise. There

41 Anson, Contracts (Huffeut's 2d ed.), p. 120, note.

42 Anson, Contracts (Huffcut's 2d ed.), § 148; Osier v. Hobbs, 33 Ark. 215; Ludlow v. Hardy, 38 Mich. 690.

43 Mills v. Wyman, 3 Pick. 207 (Mass.), LEADING ILLUSTRATIVE CASES. 44 3 Q. B. 234 (Eng.).

could be no recovery, for there was no consideration for A's promise. The purchase price could not serve for the new promise, because it was previously given and only for A's promise to sell the horse.

To the general rule thus laid down, certain exceptions are said to exist. First, it is said that a past consideration will support a subsequent promise, if the consideration was given at the request of the promisor. This is really no exception. Such cases are those where a request is made which is in substance an offer of a promise upon terms to be afterwards ascertained. The services are rendered in pursuance of such request, and the subsequent promise to pay a fixed sum is really a part of the same transaction, or else evidence to the jury to determine what would be a reasonable sum. These cases usually indicate an original intention to pay. Thus, A, at B's request, made a journey to obtain a king's pardon for B. Later, B promised to pay a sum of money for these acts. A was permitted to recover. This case is explained on the theory that inasmuch as B requested A to perform services for him under circumstances that indicated an intention on his part to pay, an action would lie, regardless of the express promise, on an implied in fact contract.45 Often the situation will give rise to a quasi-contract action.46 Ж The second alleged exception is said to exist where a person has voluntarily done what another was legally bound to do. This, although a past con

45 Lampleigh v. Brathwait, Hobart 105 (K. B., Eng.); Kennedy v. Broun, 13 C. B. (N. S.) 677 (Eng.).

46 See subject, QUASI-CONTRACTS.

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