every sincere claim will support a consideration. In Gunning v. Royal,24 A engaged from B a horse and a driver who was B's employee. The driver was incompetent, and as a result of his negligence the horse was killed. But B demanded that A pay for the horse. A actually gave a note to settle the claim. When he was sued on the note, he defended on the ground that there was no consideration for his promise to pay an unfounded claim. The court held with him. The loss being due to B's own servant, and the claim therefore being of no validity, the mere existence of the dispute was not permitted to be a consideration for the settlement.

Where a claim is well founded, a compromise constitutes a consideration. Suppose that A is injured by B's automobile, which at the time of the accident, and as a cause of the accident, was exceeding the speed limit, as provided by the state laws. Assume that the statute involved provided that excessive speed made a prima facie case of negligence. A promise by A to forbear suit, and to give a complete release for his injuries for the sum of one thousand dollars, would constitute a sufficient consideration to uphold the compromise agreement. Similarly, if the claim is doubtful, as in the case of a forbearance, the compromise will be supported by a sufficient consideration; thus, where A, a brakeman, is injured by B, a laborer, who is unloading a car on a different train, it is not certain whether or not A and B are fellow servants, and whether the railroad company is liable to A. A compromise by which the railroad

24 59 Miss. 45.

company pays A a sum for a release would be supported by the consideration paid, although the claim is doubtful, for both the company and A are doing what they need not do: the one to pay, the other to release.

Payment of a less sum. A promise to pay, or a payment of less than the whole amount of a certain sum due, which is not disputed, is not a sufficient consideration to discharge the debt. For instance, if A agrees to release B from a judgment entered for $100 if B pays $75, B is promising to do what he is bound to do. Wherefore, although B pays A $75, A may nevertheless recover the additional $25 in a later action.25 Similarly, a payment of a less amount is no consideration for an extension of time in which to pay the balance.26 Something different must be given, as a "horse, a hawk or a robe.”27

This rule is limited to its precise import, and every opportunity is taken to avoid it. Thus, if the payment of the less sum is made before the debt is due, that will constitute a consideration for a release of the debt. If A agrees to pay at a place other than the one stipulated, he promises to do that which he is not bound to do, and a consideration arises therefrom.28

Thus, in the case where a contract has been broken, and A promises to forego the right of action arising from the breach, this will constitute a consideration

25 Williams v. Carrington, 1 Hilton 515 (N. Y. C. P.), LEADING ILLUSTRATIVE CASES.

26 Day v. Gardner, 42 N. J. Eq. 199.

27 Anson, Contracts (Huffcut's 2d ed.), § 140.

28 Jaffray v. Davis, 124 N. Y. 164.

for a compromise of the breach. Two situations may arise. On the one hand, if the right to damages is not disputed, the amount may or may not be certain. If certain, then the consideration must be something other than money, for A is admitting his debt. But if the amount is unliquidated, the payment of a certain sum will be a consideration for the compromise. On the other hand, if the right is uncertain, the suit may also be compromised and there will be a consideration.29

The practice in discounting liquidated and ascertained debts is to execute a contract wherein it is recited that “in consideration of the dispute between A and B with reference to the sum due from B to A, the parties agree in compromise thereof that B shall pay A the sum of ten dollars in full settlement of his claim." Thus, although there is no question but that B owes A fifteen dollars, the above writing is entered into in order to set up an apparent defense, should A attempt to avail himself of the rule that the payment of a less sum is not a consideration for the release of the whole sum admitted to be due. In that manner, the burden is thrown on A to show that there was no dispute.

73. Accord and satisfaction. Whether the sum due is certain or uncertain, the consideration for the promise to forego the residue of the debt must be executed. It is not enough that the parties have agreed to forego. To bar any rights on the original cause of action, the agreement must have been performed before any action is brought. If it has been 29 Fuller v. Kemp, 138 N. Y. 231.

carried out, there are an accord and satisfaction. If the agreement has not been performed, there is an accord. This, as explained, is an executory contract for the doing of that which if done is to be accepted as satisfaction of the original cause of action.30 An accord alone is not a bar. There must be accord and satisfaction.

a

74. Legal duties as consideration.-Where party is under a duty imposed by law, a promise to perform that duty cannot be a consideration. If a police officer does something in the general line of his work, as to arrest a criminal, he may r not recover on a reward offered for such arrest. The policeman is doing what he is bound to do.31

But where A offered $1000 to anyone who would bring his wife's body out of a burning hotel, B, a fireman, entered the building and carried out the body. A refused, upon demand, to pay the reward. B was permitted to recover the $1000 in an action on contract. The court held that it was not a part of his duties to risk his life for such a purpose. Therefore, his act was a consideration for the promise.

32

Similar duties, which a promise to perform would not constitute a consideration, exist in the wife's promise to perform her marital duties; the ward's promise to obey his guardian; and the promise of a mother to support her illegitimate child.33

30 Lynn v. Bruce, 2 H. Bl. 317 (Eng.).

31 Pool v. Boston, 5 Cush. 219 (Mass.); Smith v. Whildin, 10 Penn. St. 39, LEADING ILLUSTRATIVE CASES.

32 Reif v. Paige, 55 Wis. 496; see Harris v. More, 70 Calif. 502. Compare with § 15, as to the intent to make a serious offer.

33 See cases collected in 9 Cyclopedia Law & Procedure, 348.

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,36 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.