MASSACHUSETTS Supreme JUDICIAL COURT. APR.,. complete it may constitute a good consideration (April 6, 1895.) Mr. W. B. French, for defendant: In order to constitute a valid consideration to support a promise, the promisee must do something which he was not bound to do. Jennings v. Chase, 10 Allen, 526; Smith v. EXCEPTIONS by defendant to rulings of Bartholomer, 1 Met. 276, 25 Am. Dec. 365: the Superior Court for Suffolk County, made during the trial of an action on a promissory note, which resulted in a verdict in plaintiff's favor. Orerruled. The facts are stated in the opinion. Miller v. Holbrook, 1 Wend. 317; Kellogg v. Olmsted, 28 Barb. 96; Hall v. Constant, 2 Hall, 185; Halliday v. Hart, 30 N. Y. 474; Turnbull v. Brock, 31 Obio St. 649; Jenkins v. Clarkson, 7 Ohio. pt. 1, p. 72: Pomeroy v. Slade, 16 Vt. 220; Wheeler v. Washburn, 24 Vt. 293. In Kellogg v. Olmsted, 25 N. Y. 189, the court, in deciding that a promise to pay an overdue debt at a certain time in the future with interest is not a consideration for a promise to extend the time of payment, states that it has been decided over and over again that if the creditor whose debt is due receives part payment of it, and in consideration of such payment promises to postpone or extend the time for payment of the balance, the promise is void for want of consideration. So, a promise to pay an existing obligation will not support a promise to extend the time of payment. Hopkins v. Logan, 5 Mees. & W. 241, 7 Dowl. P. C. 360. An agreement to pay in the future is not a consideration for the extension of the time of payment of a debt already due. Stickler v. Giles, 9 Wash. 147. A promise before the maturity of a promissory note to extend the time of payment to a fixed date, if at that time it will be promptly paid, is without consideration. Gibson v. Irby, 17 Tex. 173. A note given in part payment of an existing liability is not a sufficient consideration to support an agreement to give time for payment of the residue. Gison v. Renne, 19 Wend, 389. An agreement to pay money which is due in a way which could be insisted upon by the creditor without the agreement is no consideration for the extension of time for the payment. McManus v. Bark, L. R. 5 Exch. 65, 39 L. J. Exch. N. S. 65, 21 L. T. N. S. 676. | Pool v. Boston, 5 Cush. 219; Bartlett v. Wy man, 14 Johns. 260; Dodge v. Stiles, 26 Conn. 463. When one party to a contract makes a promise to the other party to the contract as an in the contract is not sufficient to uphold an agree- The agreement to pay interest in a certain manis not a consideration for an agreement to extend ner or to pay the principal in certain instalments the time of payment. Van Alien v. Jones, 10 Bosw. 369; Hume v. Mazelin, 84 Ind. 574. agreement to pay interest on the residue, is not a Payment of part of a note when it is due, and an consideration for an agreement to extend time of payment of the note. Fairchild v. Warren, 21 How. Pr. 187. But the time for the performance of a contract is made at a time when each party will receive may be enlarged if the agreement for enlargement some consideration for his promise to extend the time. At any time before breach the parties may by McNish v. Reynolds, 95 Pa. 483. mutual promises extend the time for performance. In case of an agreement executory on both sides ual agreement without any other or further considthe time for performance may be extended by muteration. Clark v. Dales, 20 Barb. 42. But after the time for performance of a contract parties, there can be no valid extension of time of has expired, so that there is a breach by one of the Blake, 16 Jones & S. 253. performance without a new consideration. Hill v. In Cox v. Bennet, 13 N. J. L. 165, a condition in a held capable of enlargement by an agreement bond for the payment of money within a year was without consideration so as to make a certain portion payable each year until the entire amount was paid. The agreement to pay a debt which is due by reg-held that an agreement, after the breach of the orBut in Stryker v. Vanderbilt, 27 N. J. L. 68, it was ular instalments with interest is not a consideration for an agreement to postpone the time of payment. Beer v. Foakes, L. R. 11 Q. B. Div. 221, 52 L. J. Q. B. N. S. 712. So, payment of accrued interest on a note is not a consideration for a promise to extend the time of payment. Helms v. Crane, 4 Tex. Civ. App. 89; Hale v. Forbis, 3 Mont. 395; Hunt v. Postlewait, 28 Iowa, 427; Dennis v. Piper, 21 Il. App. 169; Waters v. Simpson, 7 III. 570. So, accepting a non-negotiable note for the interest due on a bond is without consideration so as to constitute a valid contract to extend the time of payment of the bond. Gahn v. Niemcewicz, 11 Wend. 312. So, a promise to pay interest during the time of forbearance is no consideration for the agreement to forbear, when the debtor is already bound to pay interest. Reynolds v. Ward, 5 Wend. 501; Parmelee v. Thompson, 45 N. Y. 58, 6 Am. Rep. 33; Abel v. Alexander, 45 Ind. 523, 15 Am. Rep. 270; Holmes v. Boyd, 90 Ind. 332; Dow v. Chambers, 14 Phila. 647; Moore v. Macon Sav. Bank, 22 Mo. App. 692. An agreement to pay interest on a note in the same way which the law would imply from the contract will not be a consideration for the extension of the time of payment. McCann v. Lewis, 9 Cal. 246. 1 L. R. A. iginal contract, to extend the time of the performance, must be on a new consideration. In Miller v. Holbrook, 1 Wend. 317, the court says in which the time of performance of a contract was of Keating v. Price, 1 Johns. Cas, 22, 1 Am. Dec. 92, enlarged, that it is to be presumed that in that case it appeared that the promise to enlarge the time of performance was founded on a good and sufficient consideration. sumed that to enlarge the time of performance of Where a debt is payable in specific property a ducement to secure its performance, the prom | Gould, 7 N. Y. 349, 57 Am. Dec. 524; Peelman ise is without consideration, although the v. Peelman, 4 Ind. 612; Merrick v. Giddings, promisor receives some benefit from the per- 1 Mackey, 394; Davenport v. First Cong. Soc. formance. There seems to be no reason on 33 Wis. 390. principle why the same rule should not hold where a third person, a stranger to the contract, makes a like promise. A promise based on the consideration of doing that which one is already bound to do is invalid, whether the plaintiff's prior obligation were an obligation to the defendant or to a third person. Putnam v. Woodbury, 68 Me. 58; Brownlee v. Lowe, 117 Ind. 420; Gordon v. Gordon, 56 N. H. 170; Johnson v. Sellers, 33 Ala. 265; Schuler v. Myton, 48 Kan, 282; L'Amoreux v.liams, 49 Me. 558; Ellison v. Jackson Water the agreement and [to the prejudice of the debt or. Hilliard, Cont. p. 251; Richardson v. Wil An agreement by one of the makers of a note to pay the whole amount is no consideration for the promise of the surety to release the other maker from liability. Cameron v. Warbritton, 9 Ind. 351. The promise of one partner to pay the debts of the firm is no consideration for the promise of a creditor to release the other partner. Wadhams v. Page, 1 Wash. 420; Early v. Burt, 68 Iowa, 716; Wildes v. Fessenden, 4 Met. 12; Lodge v. Dicas, 3 Barn. & Ald. 611; David v. Ellice, 5 Barn. & C. 196, 1 Car. & P. 368, 7 Dowl. & R. 690; Smith v. Rogers, 17 Johns. 340. Some of the cases involving the question of release of partner involve other matters than the mere question of consideration, so that the sub If one who has contracted to deliver coal at a certain time is not able to comply with his contract, and so notifies the other party, and requests him, if he is going to take advantage of the breach, to say so, saying under such circumstances the coal will not be delivered at all, whereupon the other party states that he will waive the breach and accept and pay for the coal when delivered, the latter cannot, after receiving the coal, refuse to pay for it because it was not delivered within the terms of the contract. Lawrence v. Davey, 28 Vt. 264. In Connelly v. Devoe, 37 Conn. 570, where there was a contract to dig a well within a given time, | which could not be done because of the caving in of the well after it was partly constructed, where-ject is not fully treated here. upon the parties made a new agreement for extending time of performance, it was contended that there was no consideration for the extended time, but the court said that the abandonment of the original contract when in force, to substitute a new agreement for it, was a sufficient consideration. And the court then says that, further, it was for the interest of the owner to have the work completed, and adds: "And besides, defendant suffered the plaintiff to go on with the work after the agree-payable is no consideration for the agreement to forbear to sue for the residue. Warren v. Hodge, 121 Mass. 106; Reynolds v. Lofland, 3 Harr. (Del.) 366; Pabodie v. King, 12 Johns. 426. ment was made." It appears in the case that after the new agreement the builder on the faith of the contract to extend the time for performance purchased additional materials and performed additional work, so that a refusal to extend the time would result in appropriating his added labor and money for which he would receive no compensation, and which he would not have furnished had the refusal to continue been made when the accident occurred. Of course such conduct worked ; an Payment by surety. Payment by a surety whose obligation has become fixed is no consideration for the promise of the other party to deliver up to him the obligation of the principal. Dixon v. Adams, Cro. Eliz. pt. 2, Promise not to sue. p. 538. Payment of part of a debt already due and A promise by a debtor to make monthly payments upon certain of his overdue notes upon which the holder has no security is not a good consideration for the promise of the creditor to forbear for a time to press for payment of another overdue note against the same debtor upon which there are indorsers. Jennings v. Chase, 10 Allen, 526. of definite payments of a sum already due is withAn agreement not to sue in case of the making estoppel against afterwards refusing to permit bim to finish the work, and is of itself sufficient ground to uphold the recovery in favor of plain-out consideration. Keirn v. Andrews, 59 Miss. 39. tiff, so that what is said about consideration is not really necessary to the decision of the case. Where an action for breach of the covenant to repair was defended upon the ground that after the breach the landlord agreed, in consideration that the tenant would repair before a certain date, to refrain from suit before that time, the court said there is no good!consideration laid for the plaintiff's promise to forbear to sue. The defendant was liable to damages upon the covenant immediately for not repairing, and therefore the promise by him to repair before the designated date would be no consideration for the plaintiff's promise to forbear. Bayley v. Homan, 3 Bing. N. C. 915. Promise to release joint debtor. The payment of a debt by a debtor, which is due and payable, is not a sufficient consideration to support a promise. So, an agreement by the holder of a joint and several debt to one of the debtors upon his payment of part of the amount to look to the other debtor for the balance is without consideration and is not binding. Smith v. Bartholomew, 1 Met. 276, 25 Am.¡Dec. 365. A payment of part of the sum due on a note is not a sufficient consideration for a promise to remit interest due upon the note or to delay suit. Barron v. Vandvert, 13 Ala. 232. Payment of interest due is not a consideration ben, 90 III. 537; Woolford v. Dow, 34 Ill. 428. for an agreement to forbear. Crossman v. Wohlle A promise to forbear in collection of a debt upon the promise of the debtor to pay interest which was already due is without consideration. Stuber v. Schack, 83 Ill. 191. A promise to pay in the future rent now due and for which a suit has been brought is no consideration for an agreement to discontinue the suit. Farrington v. Bullard, 40 Barb. 512. So, a payment of part of a judgment is not a consideration for holding up the execution as to the remainder. Yeary v. Smith, 45 Tex. 72. Compliance with obligation to deliver papers or property. A promise to pay for the delivery of a paper which the holder is already in duty bound to deliver is without consideration. McCaleb v. Price, 12 Ala. 753. Where a person has agreed to surrender a con Co. 12 Cal. 542; Ritenour v. Mathews, 42 Ind. | 7;3 Am. & Eng. Enc. Law, p. 836, note; Havana Press Drill Co. v. Ashurst, 148 Ill. 115; Re Goddard's Estate, 66 Vt. 415: Baker v. Wahrmund, 5 Tex. Civ. App. 268; Ford v. Garner, 15 Ind. 298; Reynolds v. Nugent, 25 Ind. 328; Newton v. Chicago, R. I. & P. R. Co. 66 Iowa, 422; Vanderbilt v. Schreyer, 91 N. Y. 392; Seybolt v. New York, L. E. & W. R. Co. 95 N. Y. 562, 47 Am. Rep. 75; Robinson v. tract whenever requested by another to do so, his surrender will furnish no consideration for a new promise by the other. Proctor v. Thompson, 13 Abb. N. C. 340. In case one has by fraud obtained a satisfaction piece of a judgment under such circumstances that a court of equity would compel bim to return it, his retention of it is not a consideration for a promise on the part of the judgment creditor that the judgment should be subordinated to mortgages subsequently executed. Crosby v. Wood, 6 N. Y. 369. An agreement by a mortgagor to surrender possession of the mortgaged premises after condition broken, as is required by the law of the land, will not furnish a consideration for a new promise on the part of the mortgagee. Wendover v. Baker, 121 Mo. 273. The surrender of a satisfied note, and the cancelation of a mortgage given to secure it, are not alone sufficient considerations to support a new note. Smith v. Boruff, 75 Ind. 412. The delivery by an executor to a legatee of property to which he is entitled under the will is no consideration for a release of all other demands which the legatee may have against the executor. Bruton v. Wooten, 15 Ga. 570. The surrender by the creditor of collateral security after the signing of a release by a composition deed is not a sufficient consideration for a promise by the debtor to pay money to the creditor. Cowper v. Green, 7 Mees. & W. 633. A promise by one for whom a boat is being built, that in case it is delivered to him he will pay all demands of those who have worked on it under contract with the builder, is without consideration. Jones v. Miller, 12 Mo. 408. If one acting for the benefit of a corporation procures the renewal of a lease a contract to induce him to assign the lease to the corporation is without consideration. Robinson v. Jewett, 116 N. Y. 40. Agreement to comply with lease. A new promise by a landlord after the execution of a lease is not sufficient to maintain an action in favor of the tenant when it is founded only upon the promise of the tenant to perform his contract. Jackson v. Cobbin, 8 Mees. & W. 790, 1 Dowl. N. S. 96. Gratuitous agreements in variation of a lease, if unexecuted, will not prevent the specific enforcement of the lease as originally written. Price v. Dyer, 17 Ves. Jr. 364. An agreement after the execution of the lease of a farm, that the tenant will not use the pasture for horses without extra compensation to the landlord, is without consideration. Tryon v. Mooney, 9 Johns. 358. A promise by a tenant in possession of a farm to do things not required by the contract is without consideration and void. Brown v. Crump, 1 Marsh. 567. Where a covenant requires a house to be in repair, a subsequent agreement that a man shall be employed three or four days about the repair of the house is without consideration and will not satisfy the obligation. Adams v. Tapling, 4 Mod. 88. Jewett, 116 N. Y. 40; Sherwin v. Brigham, 39 Ohio St. 137; Wimer v. Overseers of Poor, 104 Pa. 317; Successive Promises of the Same Performance, 8 Harvard L. Rev. 27, 1894. There are two English cases which state a contrary rule. Scotson v. Pegg, 30 L. J. Exch. N. S. 225; Shadwell v. Shadwell, 30 L. J. C. P. N. S. 145. Scotson v. Pegg seems to be, however, directly in conflict with Herring v. Dorell, 8 If after the destruction of a fence on leased premises the lessee is still under obligations to continue to occupy the premises, a promise on the part of the landlord to repair the fence in consideration of the lessee's remaining on the property is without binding force. Proctor v. Keith, 12 B. Mon. 252. A promise by the landlord to make repairs which he is not bound by the lease to make, in consideration that the tenant remain on the premises, when his contract binds him to do so, cannot be enforced. Eblin v. Miller, 78 Ky. 371; Libbey v. Tolford, 48 Me. 316, 77 Am. Dec. 229; Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Doupe v. Gennin, 37 How. Pr. 5; Speckels v. Sax, 1 E. D. Smith, 253. A promise by a landlord during the continuance of the lease to make certain repairs on the mere consideration of the rent reserved in the lease is without consideration. Miller v. Ridgely, 19 III. App. 306. If after the execution of a lease the lessee objects to taking possession because of the defective condition of the premises, whereupon the landlord promises to make repairs, the promise is without consideration. Gottsberger v. Radway, 2 Hilt. 342. The court says that a binding contract having been made it was necessary that some new consideration should exist to support a promise to make repairs or constitute an agreement which would take the place of, change, or alter the conditions of the one already existing. But if the premises become untenantable a promise of the tenant to remain may furnish a sufficient consideration for a promise by the landlord to pay for all damages done to his furniture by so doing. Dunn v. Robins, 48 N. Y. S. R. 45. So, an agreement by a landlord to reduce the rent reserved in the lease at a time when the tenant has not refused to execute the terms of the lease, and has no right to do so, is without consideration and void. Goldsborough v. Gable, 140 III. 269, 15 L. R. A. 294; Wheeler v. Baker, 59 Iowa, 90; Crowley v. Vitty, 7 Exch. 322, 21 L. J. Exch. N. S 135. Conversely, a promise to pay more rent during the existence of the term is without consideration. Taylor v. Winters, 6 Phila. 126. An executory agreement in writing, without any consideration, to reduce the rents secured to be paid by a lease, is a mere nudum pactum. Loach v. Farnum, 90 Ill. 368. After suit brought to recover rent in arrears an agreement by the tenant to pay the arrearages and the costs of the suit is no consideration for an agreement to abate the rent in the future. Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120. But an agreement for a different rent may be made at any time in case of a tenancy at will. Hanson v. Hellen (Me.) 3 New Eng. Rep. 229. And if a reduction of rent is necessary to enable the tenant to continue business, and the landlord considers that it would be of advantage to him to have the business continue, there is a sufficient consideration for a reduction of the rent. Jaffray v. Greenbaum, 64 Iowa, 492. So, if during the term of a lease, under which a certain number of bushels of corn are to paid as Dowl. P. C. 604; Atkinson v. Settree, Willes, Rep. 482: Jones v. Wait, 5 Bing. N. C. 341; Clark, Cont. pp. 188, 189; 1 Parsons, Cont. 8th ed. 452. Mr. Henry L. Parker for plaintiff. Allen, J., delivered the opinion of the court: The plaintiff had given his accommodation note to a corporation, which had had it dis counted at a bank, and left it unpaid at its maturity. The defendant being a stockholder, director, and creditor of the corporation, wishing to have the note paid at once for his own advantage, entered into an agreement with the plaintiff, whereby he was to give to the plaintiff his own note for the amount, and the plaintiff was to furnish money to enable the defendant to take up the note at the bank. This agreement was carried out, and rent from the crop raised, the crop is destroyed by | party, so that one who is demanding additional an unprecedented storm, whereupon the persons agree that the tenant shall plant another crop and give the landlord one half of what is raised, there is a sufficient change of consideration to support the agreement. Raymond v. Kraushopf, 87 Iowa, 602. consideration is under no obligation to go on with the performance, there may be a valid new contract. Thus, if under a building contract the owner does not pay the instalments when they are due, and the builder then refuses to go on without security, an agreement for security is valid. Byington v. Simpson, 134 Mass. 145. Additional promises on both sides. In Nicoll v. Burke, 8 Abb. N. C. 213, the court, without discussing the question of consideration, bolds that an agreement to take less rent for the future was binding after the agreement was exe- If the service is not contemplated in the original cuted by the completion of the term and the pay-contract, a new agreement for extra compensation ment of the rent for the term at the altered rate. Agreement to comply with marriage contract. A note executed by a husband living separate from his wife, to induce her to return to him, is without consideration. Copeland v. Boaz, 9 Baxt. 23, 40 Am. Rep. 89. But since some cases treat the consideration in such cases as illegal rather than as wanting entirely (Merrill v. Peaslee, 146 Mass. 460), that branch of the subject does not properly fall within the scope of this note, and the cases are reserved for a full treatment of the subject elsewhere. Promise to do duty. The general question of compliance with a duty imposed by law, such as cases of public officers, witnesses, etc., are not included in this note. But there are a few cases which are so close to the line of contract obligations, that they are inserted here. An agreement by a father to pay his minor daughter wages if she will stay at home and help her mother in the care of the household is without consideration. Bolton v. Terpeny, 14 N. Y. Week. Dig. 533. Where it appears that scales of the buyer by which articles subject to a contract of purchase and sale have been weighed were incorrect, an agreement by the seller to pay the buyer a bonus for reweighing them correctly is without consideration, since it is the duty of the buyer to ascertain the correct weight. Billings v. Filley, 21 Neb. 511. In Cobb v. Cowdery, 40 Vt. 25, 94 Am. Dec. 370, it is said that a promise is without consideration where the only consideration for it is the promise of the other party to do, or his actual doing, something which he was previously bound by law to do. It is impossible to say there is a valuable consideration where the debtor does no more than the law compels him to do, and the creditor receives no more than he is entitled to receive. Keffer v. Grayson, 76 Va. 517. Where a mortgagor has agreed in the mortgage to procure insurance on the property and assign the policy to the mortgagee, an agreement by the mortgagee upon receiving the assignment to account to the mortgagor for one half of the proceeds of the policy in case of loss is without consideration and void. Lewis v. McReavy, 7 Wash. 294 Cases to be distinguished. Where there is breach on both sides. If the contract has been broken by the other in regard to it is valid. Richardson v. Hooper, 13 Pick. 446. If the modification requires the doing of something additional on the part of one party, the other after accepting performance cannot escape hability on the ground that the contract was without consideration. Maxwell v. Graves, 59 Iowa, 614. If after the making of a contract to melt iron in a mill at a certain amount per ton the mill stops, and before it resumes there is an agreement to take less per ton, the starting of the mill is a sufficient consideration to support the agreement. Church v. Florence Iron Works, 45 N. J. L. 129. Unforeseen difficulties may entitle to a new contract for extra compensation. Osborne v. O'Reilly, 42 N. J. Eq. 467. If one party has a right to terminate the agreement at his option, a promise by the other to pay a certain compensation as an inducement not to exercise the option is not without consideration. Spangler v. Springer, 22 Pa. 454. Work already completed when additional promise made. After the work has been completed a promise by the owner of the building to pay by a different scale of prices or at higher rates than those provided by the original contract is without consideration. Randolph v. Perry, 2 Port. (Ala.) 376, 27 Am. Dec. 659. Waiver of conditions. Mere cases of waiver of the performance of conditions in a contract, such as Fleming v. Gilbert, 3 Johns. 528, are distinguishable from those of the making of new contracts. A provision in a lease for three months' notice of intention to quit at the end of the term may be waived by the landlord making a new contract within three months of the expiration of the term for the payment of rent at a different time than that provided for in the original lease. Wilgus v. Whitehead, 6 W. N. C. 537. Acceptance of performance. Where one person contracts to fix on a proper location and build a mill, the acceptance of the mill after it is finished is a waiver of any objection to the locality, or to the time, or to the manner of building. Emerson v. Coggswell, 16 Me. 77. Where an engine contracted for was not delivered at the time called for by the contract, but was subsequently delivered under an agreement to waive any claim for damages for the delay, and the buyer claimed that the agreement was void because without consideration because he received the defendant now contends that his note to interests were imperiled by a delay, and inthe plaintiff was without consideration, be- deed required that the note should be paid cause the plaintiff was already bound in law at once, and that the corporation whose duty to take up the note at the bank. It is posit was primarily to pay it was without pressible that, for one reason or another, both the ent means to do so. Since the defendant bank and the plaintiff may have been will was sane, sui juris, was not imposed upon, ing to wait awhile, but that the defendant's nor under duress, knew what he was about, no more than he was entitled to under the old contract, the court states that the case is within the rule that a contract may be modified by a new agreement without any new consideration, but finally decides that the real question is not so much whether there was any consideration for the waiver of a legal right by the buyer as whether at the time when the delivery was made the contract, according to the understanding of the parties, was performed. If the buyer consented to receive the engine in satisfaction of the contract after the time for delivery had passed, the acceptance was as much binding on him as if he had consented to receive it in time, waiving some defects in material or finish. Moore v. Detroit Locomotive Works, 14 Mich. 266. It is in this class of cases that the difficulty has arisen. Application of the rule so overwhelmingly established by the decisions cited above would seem to lead to the conclusion that a promise of additional compensation for completing work called for by a contract would be nudum pactum. And such was the rule of the earlier cases. But some of the later decisions by the application of what would appear to be false principles, or the assumption of facts which did not exist, have gone far towards establishing a rule that if one under contract to do certain work, during its progress demands additional compensation therefor, which is promised him, he can enforce the promise. This result may perhaps properly follow in two classes of cases: (1) Those in which while the contract is yet progressing toward completion one party becomes so convinced that the other is not receiving sufficient benefit that he is willing to give him something extra, and so, without breach by either, the parties rescind the old contract and then make a new one providing for additional benefit. due was a sufficient consideration for his agree- 1 ment to pay off the whole debt, says that it is a general principle that a promise to one to pay him/ if he will do that which by law or by contract he he is already bound to do, is without consideration, and cannot be enforced. When a party merely does what he has already obligated himself to do he cannot demand an ad-| ditional compensation therefor, and, although by taking advantage of the necessities of his adversary he obtains a promise for more, the law will regard it as a nudum pactum, and will not lend its process to aid in the wrong. Lingenfelder v. Wainwright Brewing Co. 103 Mo. 578. Illustrations of the rule. A sailor cannot recover on a promise for extra wages. Harris v. Watson, Peake, 72. made by the master of the vessel to induce him to So, a seaman is not entitled to sue on a promise stay by the ship when others of the crew have deserted. Stilk v. Myrick, 2 Campb. 317, 6 Esp. 129; Harris v. Carter, 3 El. & Bl. 559, 23 L. J. Q. B. N. S. 295, 2 C. L. Rep. 1582, 18 Jur. 1014. So, a promise to pay seamen additional wages, made at a foreign port on their threat of desertion, Wyman, 14 Johns. 260. is without consideration and void. Bartlett v. So, where a seaman shipped for a voyage at a certain price per month, the articles providing that service, and during the voyage he was so transhe might be transferred to another ship in the same ferred under articles which provided for higher wages, the court refused to enforce the new contract, holding that it was without consideration. Fraser v. Hatton, 2 C. B. N. S. 512. the voyage are so far changed as to release the sea- (2) If one party has refused to go on so that itary service of the United States to the credit of a Where a person had contracted to enter the milhis contract is broken, and both parties recognize certain township for a certain bonus, and afterit as terminated, so that all that remains is his adversary's right of action for the breach, then the other township of a greater bonus, whereupon he wards refused to do so because of an offer from ancontract obligation no longer exists, and it would seem that the parties could make any new contract court held that there was no consideration for the was offered the same by the first township, the they wish to although it involves the same subject-latter promise, and that it would not be enforced. matter as the old one. In such case the liability for damages for the breach still exists and a consideration is necessary to release it, although of course if so agreed the consideration may be found in the undertakings of the new contract. It is the failure to apply these rules to the actual facts of the cases which has involved the cases in such confusion. General rule. Reynolds v. Nugent, 25 Ind. 325. tion of a railroad refused to proceed without extra Where one who had contracted for the construcise to be without consideration. Ayres v. Chicago, pay, which was promised, the court held the promR. I. & P. R. Co. 52 Iowa, 478. Where one party to a contract refuses to perform it unless promised some further pay or benefit than the contract provides, and the promise is The general rule is that if the rights of one con-made, and such refusal and promise are one transtracting to work on a building are fixed by the contract, any promise to pay him extra for doing what the contract binds him to do is without consideration. Nelson v. Pickwick Associated Co. 30 Ill. App. 333. A promise to pay one to do what he is already bound to do by contract is without consideration. Ritenour v. Mathews, 42 Ind. 7. In Laboyteaux v. Swigart, 103 Ind. 596, the court in deciding that payment by a third person to a Surety liable for a debt of a less amount than was action, the promise is without consideration unless the promise was induced by substantial and unforeseen difficulties in the performance which would cast upon the party additional burdens not anticipated when the contract was made. King v. Duluth, M. & N. R. Co. 61 Minn. 482. Where an architect refused to comply with his contract to supervise the erection of a building because a part of the work was given to a business rival of a concern of which he was president, and the owner of the building in order to induce him to |