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.).

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 agree-. ment 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.*

42

"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

In Roscorla v. Thomas,44 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.

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

There

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

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.

sideration, is sufficient to uphold an express promise to recompense such voluntary act. This exception is said to be founded upon the rule that a subsequent ratification of a voluntary act amounts to a previous authority." Anson concludes, however, that the authorities usually cited for this rule fail to support it.4

48 There is considerable doubt as to the foundation for the rule, unless there is a preëxisting quasi-contractual obligation as in the first exception above.

The third alleged exception consists in the rule "that where the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law, meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it.”4° Illustrations of this exception are the ratification of voidable contracts by an infant upon his attainment of majority,50 the subsequent promise made by a bankrupt discharged from debts, to satisfy those debts,51 and the promise to pay a debt which has been barred by the Statute of Limitations.52 Each of these promises is really a present legal detriment, and a promise to do what one is not bound to do.

80. Subscription agreements.-Agreements of this kind are usually divided into those for chari

47 Gleason v. Dyke, 22 Pick. 390 (Mass.).

48 Anson, Contracts (Huffcut's 2d ed.), § 150.

49 Parke, B., in Earle v. Oliver, 2 Ex. 71 (Eng.).

50 Reed v. Batchelder, 1 Met. 559 (Mass.). See § 95.

51 Lawrence v. Harrington, 122 N. Y. 408.

52 Keener v. Crull, 19 Ill. 189.