and probably acted for his own advantage, original parties to a building contract, if, it would certainly be unfortunate if the rules after having done a part of the work, the of law required us to hold his note invalid builder refused to proceed, but afterwards, for want of a sufficient consideration, when on being promised more pay by the owner, he has had all the benefit that he expected went on and finished the building, he might to get from it. In this common wealth, it recover the whole sum so promised. Munroe was long ago decided that even between the v. Perkins, 9 Pick. 298, 20 Am. Dec. 475. comply with his contract promised him a commission on the work done by such rival, the court refused to enforce the contract, saying, to permit a plaintiff to recover under such circumstances would be to offer a premium on bad faith and invite men to violate their most sacred contracts that they may profit by their own wrong. Lingenfelder v. Wainwright Brewing Co. 103 Mo. 578. An agent for the sale of machines, who has undertaken to pay the freight and storage charges on them, cannot rely on a subsequent promise by the manufacturer, made upon his importunity, to pay such charges. Esterly Harvesting Mach. Co. v. Pringle, 41 Neb. 265. Where a sealed covenant for the erection of a building provides for such alterations and additions as the owner may direct, the making of an alteration or addition is not such a consideration for an oral agreement by the owner modifying the sealed instrument as will make the oral agreement binding on the owner. Tinker v. Geraghty, 1 E. D. Smith, 687. A promise to pay a contractor extra for excavating hardpan is not binding if his contract bound him to do that work without extra pay. Nesbitt'v. Louisville, C. & C. R. Co. 2 Speers, L. 697. In that case the court says if the contractor had stopped his work and had preferred to abandon his contract rather than make the excavation, and the other party to induce him to go on,"had agreed to pay him for it, then that would have been a new consideration enough to support the contract. And that case was followed in Colcock v. Louisville, C. & C. R. Co. 1 Strobb. L. 329. A promise to one engaged to work for a year for a certain amount, of payment at an increased rate at the expiration of the term if his conduct merits it, is a mere gratuity and cannot be enforced at law. Tolmie v. Dean, 1 Wash. Ter. 47. A promise to a salesman of certain additional compensation after the signing of a written contract providing that his compensation for the year shall be a certain sum is without consideration. Cosgray v. New England Piano Co. 41 N. Y. Supp. 886. Cases which apply the opposite rule. | recovory at the original contract rates. Spicer v. Earl, 41 Mich. 191, 32 Am. Rep. 152. | If one party refuses to go on with the contract without modification, and thereupon the other agrees to the modification, such agreement is on a valid consideration. Bryant v. Lord, 19:Minn. 396. That doctrine was, however, subsequently repudiated by the Minnesota court. 61 Onun 402 A promise by a brewery company to pay a largely increased price for ice upon the refusal of the ice company to deliver it at the contract rates will not, after the ice has been delivered, be so far without consideration as to justify a refusal to pay for it at the increased rates. Goebel v. Linn, 47 Mich. 489, 41 Am. Rep. 723. But in case the fact of modification of the original agreement is disputed, and the claim raised that the new contract was simply for the purpose of mitigating damages for breach of the original contract, the question is for the jury. Endriss v. Belle Isle Ice Co. 49 Mich. 279. Where a master notifies his servant that he will thereafter pay him less than the contract price, and the servant continues to work without notifying the master that he will claim more, it constitutes a new agreement which will preclude any An agreement to warrant the soundness of a slave for the purpose of inducing one who has contracted on the previous day to purchase him, without warranty to comply with his contract is based on a sufficient consideration and may be enforced. Stoudenmeier v. Williamson, 29 Ala. 558. In Scotson v. Pegg, 6 Hurist. & N. 295, 30 L. J. Exch. N. S. 225, 3 L. T. N. S. 753, 9 Week. Rep. 280, Martin, B., asks, if a builder is under contract to finish a house by a certain date and the owner promises to pay him a certain amount of money if he will do it, what is to prevent the builder from recovering the money? The resignation of an office in a corporation is a sufficient consideration for a promissory note, although the payee had previously agreed for a valuable consideration to resign the office on demand of the maker. The court says on plaintiff's refusal to resign, he still held the office but was liable to defendant for the breach of his agreement. Defendant could not displace him or in any way compel the immediate performance of the agreement. He had only his legal remedy against the plaintiff for the breach. By the new contract he obtained from the plaintiff his actual resignation, and in consideration thereof he gave the note. By the surrender of an office which he had a right to retain (the plaintiff suffered a detriment, and the defendant thereby gained an advantage which furnished a valid consideration for the note. Peck v. Requa, 13 Gray, 407. Grounds for upholding new contract. So long as the maxim ex nudo pacto non oritur actio remains a part of the law, it is impossible that while a valid contract exists that a on one side shall equal b on the other a proposition shall be enforced that a shall be considered equal to b + c if c has any value. Therefore to enforce the latter proposition it is necessary to extinguish the former. This is easily accomplished if the right course is taken. But the difficulty is the contracting parties do not take such step. The almost universal rule is that without any express rescission of the old contract the promise is made simply for additional compensation, making the new promise a mere nudum pactum. But the courts, for the purpose of doing what the parties did not do, but should have done, i. e. getting rid of the old contract, have adopted various expedients none of which seems satisfactory. a. Waiver. The Massachusetts case, which together with Lattimore v. Harsen, 14 Johns. 331, seems to be the foundation upon which all the cases upholding the new promise rest, seems to have been placed on the ground of waiver. A contract under seal to erect a house for a certain price which was not adequate compensation was changed by parolagreement that the contractor should have more pay if he would go on and finish the work, and it was contended that there was no consideration for this promise. But the court said this depends entirely on the question whether the first contract was waived. The plaintiff having refused to perform that contract, as he might do subjecting himself to such damages as the other party might show he was entitled to recover, after See also Holmes v. Doane, 9 Cush. 135; Peck | Lattimore v. Harsen, 14 Johns. 330; Stewart v. Requa, 13 Gray, 407; Rogers v. Rogers, 139 v. Keteltas, 36 N. Y. 388; Lawrence v. Davey, Mass. 440; Hastings v. Lovejoy, 140 Mass. 28 Vt. 264; Osborne v. O'Reilly, 42 N. J. Eq. 261, 265, 54 Am. Rep. 463; Thomas v. Barnes, 467; Goebel v. Linn, 47 Mich. 489, 41 Am. 156 Mass. 581. In other states there is a Rep. 723; Cooke v. Murphy, 70. Ill. 96. In difference of judicial opinion, but the fol- England and in others of the United States lowing cases sanction a similar doctrine: la different rule prevails. But when one, In that case compromise of the dispute might have furnished a consideration for the warranty. But the case was not put on that ground. wards went on upon the faith of the new promise the modified contract. Thomas v. Barnes, 156 and finished the work. This was a sufficient con- Mass. 581. sideration. Munroe v. Perkins, 9 Pick. 298, 20 Am. Dec. 475; and that case is cited as authoritative in Hastings v. Lovejoy, 140 Mass. 261, 54 Am. Rep. 463. And in an Alabama case it is said that if two persons make a contract one of them may waive performance of the contract by the other, and assume some new and additional obligation as the consideration of the performance by the other, and such obligation will be binding on him. Johnson v. Sellers, 33 Ala. 265. It is difficult to understand how a contract can be gotten rid of by waiver. Strict performance either as to time or as to details may be waived. But the use of the word "waive" to express the idea "rescind" is inaccurate. And to rescind requires mutual promises based on mutual consideration. The breach may be waived. But the doctrine of waiver will, if applied to the breach, not operate to release the liability under the old contract, because waiver of the breach simply reinstates the old contract instead of terminating it. b. Mutual agreement. Where one who had contracted to erect a building refused to go on without a promise of additional pay, which was promised, the court says, one promise is a sufficient consideration to support another. Where one person does an act beneficial to another, or agrees to do so, that forms sufficient consideration to support an agreement. Here were mutual promises, one to perform labor and to furnish material, and the other to pay for them. The performance of labor and the furnishing of materials were of benefit to one, and of loss and injury to the other, and the new and additional contract was binding. Cooke v. Murphy, 70 Ill. 96. Where, after a person had contracted to erect a building for a certain amount, the price of labor and material went up so that he could not have complied with his contract without great loss, whereupon he refused to do so without more pay, which was promised him, the court held the promise binding, on the ground that the mutual promises of the parties were a sufficient considera Some of the cases have been put upon the ground tion to support the contract. But in that case it of mutual agreement. Mutual agreement to rescind an existing contract while it is still executory on both sides will be effectual. But, as will be seen from the cases, the agreement was not to rescind but to do or give something additional, and in some cases this was plainly done after one party had refused to continue and so was in default, and the other party entitled to his release. In Thomason v. Dill, 30 Ala. 454, the court in holding that an agreement of one who after he has entered into a contract to purchase property agrees to furnish sureties upon the security given therefor, which the original contract did not require, would be binding if it was affected by mutual agreement between the parties, says, persons before or after the consummation of a contract may either rescind or modify it, and no other consideration is necessary to support such contract of rescission or modification than the mutual agreement of the parties. Where one who had contracted to care for defendant's ward refused to proceed with the contract without a modification thereof, a new contract was made which defendant alleged to be without consideration, but the court said that the new contract operated as a rescission of the old one, stating that the release of one from the stipulations of the original agreement is the consideration of the release of the other; and the mutual releases are the consideration for the new contract and are sufficient to give it full legal effect. Rollins v. Marsh, 128 Mass. 116. Where a carpenter had contracted to build a refrigerator for a merchant, and while it was in process of construction the merchant made some objections to the way in which the work was being done, whereupon the carpenter warranted it and the merchant accepted the warranty, the court held the warranty binding, saying the contract when modified by the subsequent oral agreement is substituted for the contract as originally made, and the original consideration attaches to and supports also appears that the plan of the building was changed and the promise to build on the changed plan was a sufficient consideration for the promise for the extra pay, so that what the court said about mutual promises was not necessary to the extent to which it was apparently intended to go. Bishop v. Busse, 69 Ill. 403. In the above cases there appears to have been no express agreement for rescission. There was simply the promise of something additional by one party. Where there is modification only by additional promise by one of the parties during the existence of the contract it would seem that the doctrine of mutual promises is misapplied. Το constitute a consideration, a promise must involve something which if performed would itself he a consideration. A promise by one person to permit another to make him a present is no consideration to uphold the promise to give. And yet a promise of extra pay for performing a contract is nothing more than that. Furthermore some of the above cases involve facts in which it is doubtful if mutual promises, even if express, would rescind the con tract. In case one of the parties has absolutely refused to continue performance it would seem that the doctrine of mutual promises of rescission is inapplicable, especially where it is implied, as it is in the above cases. In such case the contract of the defaulting party is broken and the obligation of the other party released. Mutual promises will no longer rescind the contract or remove the liability for the breach, because the party not in fault being already released from his liability to perform the contract, the promise of the other party to release him therefrom is no advantage to him or detriment to his adversary, and so is no consideration for his promise to release the liability for the breach. If, therefore, the new contract is formed after the recognized breach of the old one the liability for the breach of the old one still remains unless released for a consideration and the damages on it would in all probability be the difference between Where a person abandons his contract the opposite party has his election to sue or make a new agreement. And if in the new agreement be makes new or additional promises dependent upon the performance of the work contracted for, and the work is completed, the promises are binding. Coyner v. Lynde, 10 Ind. 282. This doctrine has evidently been abandoned in Indiana, as appears from cases cited above. A party refusing to perform his contract thereby subjects himself to an action for damages, and the opposite party has his election to bring an action for the recovery of such damages or to accede to the demands of his adversary and make the promise; and if he does so it is a relinquishment of the original contract and a substitution of a new one. Rogers v. Rogers, 139 Mass. 440. Where a ship owner agreed to carry a carpenter to a certain place in case he would make certain repairs on the ship, and before the ship sailed he refused to do so unless a certain sum of money should be paid, whereupon the carpenter gave his note for the amount and was thrown out of the ship for failure to pay it, for which he brought suit, the court says the defendant might show that at a period prior to the sailing of the vessel he gave notice to the effect that he would not comply with his agreement and would hold himself responsible for all damages by reason of such breach of contract; and if the plaintiff thereupon elected not to avail himself of his right to recover damages, but chose to make a new contract, giving the defendant more advantageous terms, such new contract would be a valid consideration between the parties. No new consideration is necessary. Holmes v. Doane, 9 Cush. 135. Suing for breach of the old contract and making a new one are clearly not inconsistent remedies to which the doctrine of election will apply, but the wronged party may do either, neither, or both at his option, so that the mere making of the new contract will not of itself release the liability for breach of the old one. d. Acting on promise. promise to pay a sum of money for such performance, the reasons for holding him bound to such payment are stronger than where an additional sum is promised by the party to the original contract. Take an illustration. A enters into a contract with B to do some thing. It may be to pay money, to render But it is suggested in Bates v. Starr, 2 Vt. 536, 21 Am. Dec. 568, that there may be cases in which a contract is terminated by accord and satisfaction, or an executory accord which has been so far executed that it could not be receded from without great inconvenience in which the second contract would supersede the first one. A contract can be altered or modified only by a distinct and substantive contract between the parties founded on some valid consideration. But if there was no original consideration for the change, yet if it is acted upon until it would work a fraud or injury to refuse to carry it out, it becomes binding and effectual as a contract. The moditication cannot be supported by the supposition that it is founded on the continuation or extension of the consideration of the prior contract, which was complete of itself and so far as it went fixed the rights of the parties. Thurston v. Ludwig, 6 Ohio St. 1, 67 Am. Dec. 328. The doctrine of Bates v. Starr and Thurston v. Ludwig is applicable, however,not so much to promises of extra compensation, as to modification in the manner or time of performance. e. New contract satisfies claim for damages. Some of the courts imply that the old liability is merged in the new contract. When the new contract is made, the old contract is held to be waived or abandoned or the parties are left to their legal rights and remedies for its breach, but that does not operate to make the new agreement invalid for want of consideration. Peck v. Requa, 13 Gray, 407. And that doctrine is carried further in Rollins v. Marsh, 128 Mass. 116, so as to hold that the new contract operates as a rescission of the old one, and that the legal remedy for the breach is lost. If after partial fulfillment of a contract to sell and deliver goods at certain prices the seller refuses to deliver any more at those prices, whereupon a new contract is made at a higher rate, the new contract prima facie takes the place of the original agreement as to everything remaining unperformed, and no action will lie for the breach of the old contract. Rogers v. Rogers, 139 Mass. 440. The court says if the parties agreed that orders should be filled at prices stipulated for in the new contract, without considering whether the new agreement would of itself be a discharge of partial breaches, performance of the new agreement would operate as a discharge or an accord and satisfaction, unless it appeared that such was not the intention of the parties. Where a bid for work was made under an assurance that certain work called for by the specifications would not be required because of the proposed erection of another building which would In one case it is said that it is a sufficient consideration for the new promise that the person claim-render it unnecessary because of which the cost of ing the benefit of it went on and completed his contract on the faith of it. Courtenay v. Fuller, 65 Me. 156; Rogers v. Rogers, 139 Mass. 440. The party should not be heard to say that he acted on the promise of reward rather than on his solemn obligation to perform. it was not included in the bid, but it was subsequently required, whereupon the bidder refused to do the work without extra pay for that part, which was promised, the court says the owner thus relieved the bidder from all claims he might have had against him for the breach of the contract in refusing to do this work under it, and his subsequent agreement to do it was sufficient consideration to support his promise to pay for it. Stewart v. Ket Besides there is in such case for the old consideration, i. e.. the performance of the work, on the one side, the agreement to release damages for the breach in addition to the promise for greater com-eltas, 36 N. Y. 388. pensation, and there is plainly no new consideration to support such agreements. If the new contract is valid the presumption is certainly strong that it was intended to satisfy all It service, or to sell land or goods for a price. | from B may be executed or executory. The contract may be not especially for the may be money or anything else in law deemed benefit of B but rather for the benefit of valuable. It may be of slight value, as comothers, as, e. g., to erect a monument, an arch-pared with what A has contracted to do. way, a memorial of some kind, or to paint Now A is legally bound only to B, and, if a picture to be placed where it can be seen he breaks his contract, nobody but B can reby the public. The consideration moving cover damages, and those damages may be claims under the old contract. But since techni-, cally the old contract must be out of the way before the new one can become valid, the use of the fact that the new one exists as a premise from which to prove the annulment of the old involves an assumption which is hardly justifiable. In Massachusetts, where the performance of the old obligation is a sufficient consideration for the new promise (Rogers v. Rogers, 139 Mass. 440), and the new contract prima facie takes the place of the old one, of course such assumption is permissible. But in states which still recognize the rule ex nudo pacto non oritur actio, and hold that performance of an existing obligation is no consideration for a new promise, there is no ground for implication of satisfaction of the old contract. In case the old contract has been broken a liability for damages exists. This liability can be extinguished by contract upon a consideration. If the parties expressly contract, or by conduct plainly imply, that the extinguishment of this liability is to form one of the terms of the new contract, that will be sufficient. But the mere making of the new promise is not sufficient to raise the implication that all the other necessary steps have been taken. Absence of the other necessary steps is, on the other hand, strong evidence that the new promise is simply on the old consideration and therefore a nudum pactum. The correct reasoning. Where plaintiffs contracted to build a cart way for a certain sum under a penalty, and after beginning the work became dissatisfied and gave notice that they would abandon the work, whereupon the owner promised them more pay, for which they sued, the court said by the old contract the plaintiffs subjected themselves to a certain penalty for the nonfulfillment, and if they chose to incur this penalty they had a right to do so, and if afterwards the owner made a new agreement with them it was valid. Lattimore v. Harsen, 14 Johns. 331. the work done, that was not altered in the slightest manner. The plaintiff came under no new obligation, he was to do the same work he had previously bound himself to do. It was varied in this, that the defendant promised to give an additional sum if plaintiff would do the work. This would be no valid promise. A consideration is an essential ingredient to the existence of every simple contract. What loss, trouble, or inconvenience, or charge resulted to plaintiff by his executing the work? He was bound to build the mill by his original contract, and he was to do nothing more. What benefit would result to defendant by the promise to pay the additional money? None whatever. He was to get from the plaintiff precisely the same quantum of work without it as with it. The promise was a mere nudum pactum not binding in law. Where a person contracted to do certain work for a certain price, the first instalment of which should be the assignment of a bond and mortgage of a third person, and when the assignment was due refused to take it unless its payment was guaranteed, and suspended work, whereupon the assignor executed the guaranty, the court held that there was no consideration for the guaranty, and that it could not be enforced, saying that the builder had only done what he was before legally bound to do. Even though it lay in his power to refuse to perform his contract he could do this only upon paying the other party the damages occasioned by his nonperformance, and that in contemplation of law would be equivalent to performance. He had no legal or moral right to refuse to perform the obligation of the contract into which upon a good consideration he had voluntarily entered. But the court says it would doubtless be competent for parties to cancel an existing contract and make a new one to complete the same work at a different rate of compensation, but it seems that it would be essential to its validity that there should be a valid cancelation of the original one. Such was the case of Lattimore v. Harsen, supra; Vanderbilt v. Schreyer, 91 N. Y. 392, Reversing 21 Hun, 537. In that case the plain implication is that the penalty still existed. But that since the amount was liquidated it was more advantageous for the builder to suffer the penalty and get the additional compensation than to perform the old contract as it stood. Of course the result might not be so advan-M. & N. R. Co. 61 Minn. 482, "not to commend itself tageous where the damages are not liquidated. But in Allen v. Jaquish, 21 Wend. 632, Lattimore v. Harsen is explained on the ground that the old contract was rescinded by a new contract executed and fully carried into effect. Where a tenant upon refusal to pay rent because of the landlord's refusal to repair is notified to quit, the lease is at an end, and if then the landlord, to retain the tenant, promises to make the repairs, the contract is a new one, although the rent is to be the same, and the landlord may be liable on his contract. Conkling v. Tuttle, 52 Mich. 630. If a contract to perform certain stipulated services for a certain sum is not rescinded by the mutual consent of the parties, then a promise to pay an additional sum for the same services is without consideration and cannot be enforced. Festerman v. Parker, 10 Ired. L. 474. In that case the plaintiff had agreed to erect a mill for a certain price, and after it was partly done he refused to go on without additional pay, which was promised. The court says the variation of a contract is as much a matter of contract as the original agreement. In what was the contract in this question varied? Not in The doctrine that the person is bound by his new promise is stated by the court in King v. Duluth, either to our judgment or our sense of justice. . . No amount of astute reasoning can change the plain fact that the party who refuses to perform, and thereby coerces a promise from the other party to the contract to pay him an increased compensation for doing that which he is legally bound to do, takes an unjustifiable advantage of the necessities of the other party. . . . Surely it would be a travesty on justice to hold that the party so making the promise for extra pay was estopped from asserting that the promise was without consideration. A party cannot lay the foundation of an estoppel by his own wrong. . . . Where the promise is simply a repetition of a subsisting legal promise there can be no consideration for the promise of the other party, and there is no warrant for inferring that the parties have voluntarily rescinded or modified their contract. The promise cannot be legally enforced, although the other party bas completed his contract in reliance upon it." Promise to perform additional duty for same consideration. Where the owner of a building, under threats of suspending the work, secures from the contractor slight. They may even be already liquidated at a small sum by the terms of the contract itself. Though A is legally bound, the motive to perform the contract may be slight. If after A has refused to go on with his undertaking, or while he is hesitating whether to perform it or submit to such damages as without any additional consideration a guaranty not embraced in the original contract, it is without consideration and cannot be enforced. McCarty v. Hampton Bldg. Asso. 61 Iowa, 287. If a party has sold and delivered an article of a stipulated quality and at a given price, an agreement to warrant it of a better quality without any further consideration is nudium pactum. McDugald v. McFadgin, 6 Jones, L. 89. Where a contract calls for payment in lawful silver money an agreement to take the pay in legal tender is without consideration. McCalla v. Ely, 64 Pa. 254. After the making of a contract to purchase land which is subject to a servient tenement a refusal to comply with the agreement without a promise to abandon such tenement, which results in such promise, does not furnish a consideration for the promise which makes it binding. Erb. v. Brown, 69 Pa. 216. In case of a note given by one partner to another for his interest in the concern, which was given under an undertaking on the part of the former to indemnify the withdrawing partner from all losses of the firm, an agreement to withdraw the note in consideration of the continuing partner's settling certain suits that had been brought against the firm is without consideration. Malone v. Dougherty, 79 Pa. 46. Under a contract for the sale and delivery of hogs at a certain time, payment for which the law would regard as due when they were delivered, a promise to make payment of a portion of the price before the time for delivery is without consideration. Thurston v. Ludwig, 6 Ohio St. 1, 67 Am. Dec. 328. Promise by stranger to the contract. Another question upon which the cases are not fully agreed is as to how far a promise by a third person to induce a party to comply with his contract is binding. Statute of frauds. If the promise of the third person is only to pay what was due by the original contracting party under the contract, it is a promise to answer for the debt of another within the statute of frauds. Ellison v. Jackson Water Co. 12 Cal. 542. B may be entitled to recover, other persons interested in having the contract performed intervene, and enter into a new agreement with A by which A agrees to do that which he was already bound by his contract with B to do, and they agree jointly or severally to pay him a certain sum of money, and give riage. Byles, J., dissented, saying that the rule that a promise based on doing what a man was already bound to do applied to the case. And that the reason why the doing what a man is already bound to do is no consideration, is not only that in judgment of law such consideration is of no value, but because a inan can hardly be allowed to say that the prior legal obligation was not his determining motive. But the nephew may have intended to postpone the time of marriage until his income was sufficient, in which case bis immediate marriage in reliance upon his uncle's promise may have furnished a consideration for the promise. Compliance with existing obligation. Some cases have pushed the doctrine of Shadwell v. Shadwell, 9 C. B. N. S. 159, 30 L. J. C. P. N. S. 145, 7 Jur. N. S. 311, 3 L. T. N. S. 628, 9 Week. Rep. 163, to the full extent of holding a promise binding if made by a third person to induce a party to comply with his contract. The performance of an act which a person has agreed with another to perform is a good consideration to support a contract with a third person if the latter derives a benefit from its performance. Therefore if a person promises a ship owner that if he will deliver a cargo of coal to him in his ship he will discharge it at a certain rate, he is not relieved from the promise by the fact that the ship owner was under contract with third persons to deliver the coal to him. Scotson v. Pegg, 6 Hurlst. & N. 295, 30 L. J. Exch. N. S. 225, 3 L. T. N. S. 753, 9 Week. Rep. 280. So, where a person entered into the services of a captain of a war vessel to act as cook at wages above those to which his rating in the services entitled him, it was contended that the captain was under no liability to him because the promise was without consideration, since he was bound to act for the regular wages, but Erskine, J., said the case is the same as if the contract had been that in consideration of the plaintiff entering into the service of a third person, the captain would pay him wages in addition to the wages given him by such person. In such case there being an express promise it will be no answer to say that the plaintiff did not enter the captain's service. Clutterbuck, v. Coffin, 3 Macn. & G. 842, 4 Scott, N. R. 509, 1 Dowl. N. S. 479, Promise where contract obligation not fully fixed. Car. & M. 273, 11 L. J. C. P. N. S. 65, 6 Jur. 131. Before a surety has incurred' any liability under his contract a promise by a third person to induce him to remain on the bond is not without consideration. Carroll v. Nixon, 4 Watts & S. 517. If the liability of a surety has not become fixed, and to prevent his taking steps to be relieved from his obligation a third person promises to indemnify him against liability, such agreement is not without consideration to support it. Drury v. Fay, 14 Pick. 328. And this suggestion may support the leading English case of Shadwell v. Shadwell, 9 C. B. N. S. 159, 3L. J. C. P. N. 8. 145, 7 Jur. N. S. 311, 3 L. T. N. S. 628, 9 Week. Rep. 163. In that case a letter by a man to his nephew expressing satisfaction at his engagement to marry a certain person, and promising an annuity to aid the nephew, was held to support an action in favor of the latter when he had entered into the mar And that doctrine has been recognized in the District of Columbia. A promise made in consideration of the doing of an act which the promisee is already under obligation to a third person to do, though made as an inducement to secure the doing of that act, is not binding because it is not supported by a valid consideration. At least when the act done on the part of the promisor involves nothing more than performance of the original obligation towards the person to whom it was due. But if the promise is made in consideration of a promise to do the act entered into directly with the promisor, then the promise is binding because not made in performance of a subsisting obligation to another person, but upon a new consideration moving between the promisor and promisee. And if the promisee was already bound by his contract with the third person, and was actually performing it at the time of the promisor's request, the mere fact of the request |