for the promise-that taking the influenza was only a condition, and that the using the smoke ball was only a condition, and that there was no consideration at all; in fact, that there was no request, express or implied, to use the smoke ball. Now, I will not enter into an elaborate discussion upon the law as to requests in this kind of contracts. I will simply refer to Victors v. Davies (12 M. & W., 758), and Serjeant Manning's note to Fisher v. Pyne (1 M. & G., 265), which everybody ought to read who wishes to embark in this controversy. The short answer, to abstain from academical discussion, is, it seems to me, that there is here a request to use involved in the offer. Then as to the alleged want of consideration. The definition of "consideration" given in Selwyn's Nisi Prius, 8th ed., p. 47, which is cited and adopted by Tindal, C. J., in the case of Laythoarp v. Bryant, 3 Scott (p. 238, 250), is this ("Any act of the plaintiff from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff, provided such act is performed or such inconvenience suffered by the plaintiff, with the consent, either express or implied, of the defendant." Can it be said here that if the person who reads this advertisement applies thrice daily, for such time as may seem to him tolerable, the carbolic smoke ball to his nostrils for a whole fortnight, he is doing nothing at all-that it is a mere act which is not to count towards consideration to support a promise (for the law does not require us to measure the adequacy of the consideration)? Inconvenience sustained by one party at the request of the other is enough to create a consideration. I think, therefore, that it is consideration enough that the plaintiff took the trouble of using the smoke ball. But I think also that the defendants received a benefit from this user, for the use of the smoke ball was contemplated by the defendants as being indirectly a benefit to them, because the use of the smoke balls would promote their sale. .

1

§116 PARROT v. MEXICAN CENTRAL RY. CO.,

.

LTD.

Supreme Judicial Court of Massachusetts, 1911. [207 Mass. 184.] KNOWLTON, C. J.: The defendant contends that there was no consideration for the promise to pay money to the plaintiffs, because they were already bound by the writing to do all that they undertook to do under the oral agreement. As a general proposition, it is settled in this Commonwealth that a promise to pay one for doing that which he was under a

"For other parts of this case see §§71, 100.

prior legal duty to do is not binding for want of a valid consideration. Warren v. Hodge (121 Mass., 106). It has often been said that the principle involved is the same that lies at the foundation of the doctrine that a promise to accept or pay a less sum in discharge of a debt for a greater amount is not binding. In connection with the general proposition see also Cabot v. Haskins (3 Pick., 83, 92, 93), Tobey v. Wareham Bank (13 Met., 440, 449), Lester v. Palmer (4 Allen, 145), Harlow v. Putnam (124 Mass., 553).

A limitation of the general proposition has been established in Massachusetts, in cases where a plaintiff, having entered into a contract with the defendant to do certain work, refuses to proceed with it, and the defendant, in order to secure to himself actual performance of the work in place of a right to collect damages from the plaintiff, promises to pay him an additional sum. This limitation is not intended to affect the rule that a contract cannot be binding without a consideration; but it rests upon the doctrine that, under these circumstances, there is a new consideration for the promise. Monroe v. Perkins, 9 Pick. 298. Holmes v. Doane, 9 Cush. 135. . . . Abbott v. Doane, 163 Mass. 433, 434, 435. In Rollins v. Marsh, 128 Mass. 116, 120, the court said: "The parties had made a contract in writing with which the plaintiff had become dissatisfied, and which she had informed the defendant that she should not fulfill unless the terms were modified. If she had abandoned her contract, he might have made a new arrangement with someone else for the support of his ward, and enforced whatever remedy he had for the breach against the plaintiff. Instead of this, he made a new contract with her, which operated as a rescission of the original agreement. In such a case the new promise is given to secure the performance, in place of an action for damages for not performing, as was pointed out by this court in Peck v. Requa, 13 Gray 407, 408.

This limitation in the application of the general rule to such facts is not recognized in England, nor in most of the states in this country. See Abbott v. Doane, 163 Mass. 433, 434, 435; Leake, Con. (4th Eng. ed.) 434-436; Pollock, Con. (7th Eng. ed.) 184-186; Harriman, Con. §§117-120; see also 8 Harv. L. Rev. 27; 12 Ibid. 515, 521, 531; 13 Ibid. 519; 17 Ibid. 71. While it is well established in Massachusetts, the doctrine should not be extended beyond the cases to which it is applicable upon the recognized reasons that have been given for it. A majority of the court are of the opinion that it is not applicable to the evidence in this case, and that the defendant is right in this contention that, upon the assumption that the parties were bound

by the written contract, there was no consideration for the new promise of the defendant.

$117

LINZ v. SCHUCK.

Court of Appeals of Maryland, 1907. [106 Md. 220.]

[The plaintiff, Schuck, was working under a contract for the defendant, Linz. After part performance he refused to go on with the work on account of substantial difficulties not foreseen at the time the contract was made. In order to induce him to continue the work, the defendant promised him additional compensation, which he now refuses to pay.]

BOYD, J.: The principal question in the case is whether the plaintiff was entitled to recover for the additional costs and expenses incurred, by reason of those conditions, on the promise of the appellant to pay for them. The precise question for our consideration is presented by the plaintiff's fifth prayer, which was granted. After referring to the written contract made in April or May, 1903, and the refusal of the plaintiff in June, 1903, to perform and complete said contract, the prayer further submitted to the jury to find whether "said refusal on the part of the plaintiff was induced by substantial and unforeseen difficulties in the performance, which would cast upon the plaintiff additional burden not anticipated by the parties when the contract was made, and if they further find that after said refusal by the plaintiff, the defendant to induce the plaintiff to resume the work thus abandoned promised him to see him through and to stand the consequences, and that relying upon said promise the plaintiff completed the work, then their verdict may be for the plaintiff," etc. That prayer seems to have followed quite closely the language used in King v. Duluth, M. & N. Ry. Co., 61 Minn. 487 (s. c. 63 N. W. 1105), which case, notwithstanding unfavorable criticism by some writers, in our opinion announces a principle which is not only just and equitable, but is easily reconcilable with the general rule that a promise to do, or actually doing, that which a party to a contract is already under legal obligation to do, is not a valid consideration to support the promise of the other party to the contract to pay additional compensation for such performance. In King v. Duluth, after stating that general rule, it is added: "In other words, a promise by one party to a subsisting contract to the opposite party to prevent a breach of the contract on his part is without consideration." The Court then cited Ayers v. R. R. Co., 52 Iowa, 478; Linginfelder v. Brewing Co., 103 Mo. 578; Vanderbilt v. Schreyer, 91 N. Y. 392, and other cases, most of which are

among those relied on by the appellant as sustaining and illustrating the general rule which the Supreme Court of Minnesota unhesitatingly and emphatically approved of. Indeed, the Court said that the doctrine of Monroe v. Perkins, 9 Pick. 305; Goebel v. Linn, 47 Mich. 489; Rogers v. Rogers, 139 Mass. 440; Bryant v. Lord, 19 Minn. 396, and Moore v. Locomotive Works, 14 Mich. 266, as it is frequently applied, did not commend itself to their judgment or sense of justice. Those are some of a number of cases which have sustained actions for additional compensation on various theories-some on the ground of waiver, others on the ground that the party for whom the work was done had the election of suing the other party for damages for breach of contract or to make a new contract, and others that it was a modification of the original contract, etc. Chief Justice START, of the Minnesota Court, in the course of the opinion, said: "It is entirely competent for the parties to a contract to modify or waive their rights under it and ingraft new terms upon it, and in such a case the promise of one party is the consideration for that of the other; but where the promise to the one 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. But where the party refusing to complete his contract does so by reason of some unforseen and substantial difficulties in the performance of the contract, which were not known or anticipated by the parties when the contract was entered into, and which cast upon him an additional burden not contemplated by the parties, and the opposite party promises him extra pay or benefits if he will complete his contract, and he so promises, the promise to pay is supported by a valid consideration. In such a case the natural inference arising from the transaction, if unmodified by any equitable considerations, is rebutted, and the presumption arises that by the voluntary and mutual promises of the parties their respective rights and obligations under the original contract are waived, and those of the new or modified contract substituted for them. Cases of this character form an exception to the general rule," etc. The opinion then goes on to say that, on the other hand, when there are no unforeseen additional burdens, which make the refusal to perform, unless promised further pay, equitable, and such refusal and promise of extra pay are one transaction, the promise is without consideration and the case is within the general rule. It then holds that what unforseen difficulties and burdens will make the refusal to perform equitable, so as to bring it within the exception to the general rule, must depend upon the facts of each particular case.

We have thus referred to, and quoted from, that case at unusual length because the principles therein announced seem to us to be not only well and clearly stated, but just, and founded on reasons that any court of justice should hesitate to reject, unless they conflict with some binding authority or established rule of law, which in our judgment they do not. When two parties make a contract based on supposed facts, which they afterwards ascertain to be incorrect, and which would not have been entered into by the one party if he had known the actual conditions which the contract required him to meet, not only courts of justice but all right thinking people must believe that the fair course for the other party to the contract to pursue is either to relieve the contractor of going on with his contract or to pay him additional compensation. If the difficulties be unforseen, and such as neither party contemplated, or could have from the appearance of the thing to be dealt with anticipated, it would be an extremely harsh rule of law to hold that there was no legal way of binding the owner of property to fulfill a promise made by him to pay the contractor such additional sum as such unforeseen difficulties cost him. But we do not understand the authorities to sustain such a rule; on the contrary, they hold that the parties can rescind the original contract, and then enter into a new one by which a larger consideration for the same work and materials that were to be done and furnished under the first contract can be validly agreed upon. Persons competent to contract can as validly agree to rescind a contract already made as they could agree to make it originally, but we are met with the contention (which, it must be admitted, is sustained by courts of high authority) that while this is true, yet after a contract is broken by one of the parties the other cannot waive his right to treat it as no longer existing and bind himself to pay more than the original contract called for, unless the original contract is actually rescinded.

In Anson on Contracts, 76, after speaking of the well-known case of the sailors not being entitled to recover more than their contracts called for, it is said: "It would have been otherwise if risks had arisen which were not contemplated in the contract. For instance, such a contract as that which the scamen had entered into in the case just cited contains an implied condition that the ship shall be seaworthy." Mr. Brantly on page 70 of Law of Contracts, after referring to the other doctrine, says: "But the rule of other cases is that the promise is valid because the promisee is entitled to choose between the risk of being sued for a breach of his contract and the prospect of loss from going on at the original price. It also seems that the new promise of