claim may be either liquidated or unliquidated. A claim of A against B for $5, admittedly lent by A to B, but concerning the payment of which there is a dispute, is a disputed claim; but the amount of the claim, if it exists at all, is fixed.1 As the amount of an unliquidated claim is unknown, and as either the existence or the amount of a disputed claim is unknown, whether a claim is unliquidated or disputed, it comes under the rule generally applicable to consideration," that the law, where it can avoid doing so, will not attempt to put a value on a consideration agreed upon by the parties. The surrender of a disputed claim, whether unliquidated or liquidated, if the dispute is honest and not obviously frivolous, is, therefore, consideration which the law cannot attempt to value. Accordingly any sum given and accepted as consideration for an agreement to discharge a claim which is unliquidated or the subject of bona fide and reasonable dispute is valid consideration. But a frivolous dispute or disingenuous A. 120; Hargroves v. Cooke, 15 Ga. 321; Treat v. Price, 47 Neb. 875, 66 N. W. 834, 836. 1 The question is merely one of words, since it is unquestionably true that a disputed claim may, like an unliquidated claim, be settled for such sum as the parties may agree; but as a mere matter of words, one cannot agree with the statement, "when it is admitted that one of two specific sums is due, but there is a general dispute as to which is the proper amount, the demand is regarded as 'unliquidated' within the meaning of the term as applied to the subject of accord and satisfaction." Lestienne v. Ernst, 5 N. Y. App. Div. 373, 39 N. Y. S. 199, 200. 2 See supra, § 115. See infra, § 135. Read v. Gt. Eastern R. Co., L. R., 3 Q. B. 555; United States v. Child & Co., 12 Wall. 232, 20 L. Ed. 360; In re D. H. Bride & Co., 132 Fed. 285; Hand Lumber Co. v. Hall, 147 Ala. 561, 41 So. 78; Bull v. Bull, 43 Conn. 455; Blake v. Baldwin, 54 Conn. 5, 5 Atl. 299; Sanford v. Abrams, 24 Fla. 181, 2 So. 373; Harland v. Staples, 79 Ill. App. 72; Bingham v. Browning, 97 Ill. App. 442, affirmed in 197 Ill. 122, 64 N. E. 317; Janci v. Cerny, 287 Ill. 359, 122 N. E. 507; Ennis v. Pullman Palace-Car Co., 165 Ill. 161, 46 N. E. 439, affirming 60 Ill. App. 398; Little v. Korner, 28 Ind. App. 625, 63 N. E. 766; Storch v. Dewey, 57 Kans. 370, 46 Pac. 698; Baugh v. Fist, 84 Kans. 740, 115 Pac. 551; Barber v. State, 24 Md. 383; Alvord v. Marsh, 12 Allen, 603; Pollman & Bros. Coal & S. Co. v. St. Louis, 145 Mo. 651, 47 S. W. 563; Maack v. Schneider, 51 Mo. App. 92; Brink v. Garland, 58 Mo. App. 356; Chamberlain v. Smith, 110 Mo. App. 657, 85 S. W. 645; Slade v. Swedeburg Elevator Co., 39 Neb. 600, 58 N. W. 191; Palmerton v. Huxford, 4 Denio, 166; Bandman v. Finn, 185 N. Y. 508, 78 N. E. 175, 12 L. R. A. (N. S.) 1134; Laroe v. Sugar Leaf Dairy Co., 87 N. Y. App. D. 585, 84 N. Y. S. 609 (reversed on another ground in 180 N. Y. 367, 73 N. E. 61); Riggs v. Home Mutual Fire Protection Asso., 61 S. C. 448, 39 S. E. 614; Hussey v. h disclaimer of liability will not help an attempt to compromise an obvious obligation.4" 129. Payment of so much of an unliquidated or disputed claim as is admittedly due, is valid consideration. Not infrequently though a claim is unliquidated, or the subject of a bona fide and reasonable dispute, it is conceded that at least a certain amount is due. It might seem that in paying this conceded part of the claim, or any lesser amount, the debtor was merely doing what he was previously bound to do, and that, therefore, the payment could not be valid consideration. The law, however, looks at an unliquidated or disputed claim as a whole and so looking at it, does not attempt to set a value upon it, or to define the extent of the debtor's legal obligation. Accordingly such a claim is dealt with as a horse is dealt with, as something the adequacy of which as consideration will not be measured; and the payment of the amount admittedly due will support a promise to discharge the whole claim.5 Crass (Tenn. Ch. App.), 53 S. W. 986; 42 In Mills v. O'Daniel, 23 Ky. L. Rep. 73, 62 S. W. 1123, 1124, the court said: "A mere disclaimer of liability on one's note-the execution of it upon a sufficient consideration not being denied, and it not being barred by limitation or other matter of release-will not constitute a basis for a 'dispute,' the amicable settlement of which will support a promise of the payee to abate some part of the debt." So in Harms v. Fidelity & Casualty Co., 172 Mo. App. 241, 157 S. W. 1046, a statement in a release which required consideration for its validity that the claim was in dispute was held ineffectual. "The controversy must be real and the issue respecting it be considered by the parties as doubtful." See also Decker v. Smith, 88 N. J. L. 630, 86 Atl. 915, 917. ' Chicago, M. & St. P. R. Co. v. Clark, 178 U. S. 353, 44 L. Ed. 1099; 20 Sup. Ct. 924; San Juan v. St. John's Gas Co., 195 U. S. 510, 49 L. Ed. 299, 25 S. Ct. 108; Ostrander v. Scott, 161 Ill. 339, 43 N. E. 1089; Ennis v. Pullman Palace Car Co., 165 Ill. 161, 46 N. E. 439; Bingham v. Browning, 197 Ill. 122, 64 N. E. 317; Neely v. Thompson, 68 Kans. 193, 75 Pac. 117; Cunningham v. Standard Const. Co., 134 Ky. 198, 119 S. W. 765; Tanner v. Merrill, 108 Mich. 58, 65 N. W. 664, 31 L. R. A. 171, 62 Am. St. Rep. 687; Marion v. Heimbach, 62 Minn. 214, 64 N. W. 386; Jordan v. Great Northern Ry. Co., 80 Minn. 405, 83 N. W. 391; Pollman & Bros. Coal & S. Co. v. St. Louis, 145 Mo. 651, 47 S. W. 563; Treat v. Price, 47 Neb. 875, 66 N. W. 834 (overruling dictum to contrary in 29 Neb. 536, 45 N. W. 790); Nassoiy On principle it seems that a distinction should be taken between (1) the case of a wholly unliquidated claim which the debtor has admitted to be of a certain value, and (2) the case of a liquidated claim with an unliquidated or disputed addition to it. Where a claim is wholly unliquidated, the parties may, of course, by agreement, liquidate it and after they have made such an agreement the situation is the same as if the claim had been liquidated from the outset. But an admission or even an agreement subsequent to the creation of an unliquidated claim that at least a certain amount is owing has no binding force, since the creditor gives no consideration for such an agreement by the debtor. As the creditor is left free to assert the full value of his claim, if that exceeds the admitted amount, the debtor must be equally free. The agreement indeed amounts to the same thing as an admission in terms by the debtor, but an admission is open to explanation and need not be conclusive. Any action by the creditor would have to be brought for the whole claim, and any breach of contract alleged would have to be the failure to pay the whole claim. On the other hand, where a contract required the payment of $50 a month for services, and the parties disputed whether the contract also provided that extra payment should be made for extra work, it seems evident that the debtor was under a distinct legal obligation to pay $50 a month. It is true that in an action on the contract the plaintiff must state the contract accurately, and if the contract included as one of its terms an agreement to pay for extra work, this promise must be alleged in the declaration or complaint as part of the contract. But it would be an accurate and sufficient statement of a breach of the contract for the plaintiff to allege that the defendant had failed to pay the liquidated monthly sum which he agreed to pay. An entire contract may consist of several promises and may be broken by a failure to perform any one of several specific things therein undertaken. v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695; Komp v. Raymond, 175 N. Y. 102, 67 N. E. 113; Lestienne v. Ernst, 5 N. Y. App. Div. 373, 39 N. Y. S. 199. But see Prudential Ins. Co. v. Cottingham, 103 Md. 319, 63 Atl. 359; Demeules v. Jewel Tea Co., 103 Minn. 150, 114 N. W. 733, 14 L/R. A. (N. S.) 954, 123 Am. St. Rep. 315; Thayer v. Harbican, 70 Wash. 278, 126 Pac. 625. In the contract supposed, it is a specific thing undertaken by the defendant that $50 a month shall be paid. If this is true, it follows that the defendant is under a legal obligation to pay $50 a month; and the performance of that legal obligation should not be sufficient consideration. Though the courts seem to have failed to observe the distinction between a wholly unliquidated claim of at least a specified value and a claim where there is a distinct obligation to pay a liquidated amount as part of an entire contract, the distinction is clearly recognized between either of such cases on the one hand, and a case where a debtor is liable under two distinct contracts, on the other hand. If the debtor owes a liquidated amount, the fact that he owes on another contract an unliquidated or disputed amount, will not make payment of the former sufficient consideration for an agreement to discharge the latter, or indeed for any other promise. If, however, there are cross claims between the parties, if either claim is unliquidated, or the subject of bona fide and reasonable dispute, since the balance due on adjustment of the claims is uncertain, any payment will support an agreement to cancel both claims. 10 § 130. Performance, or promise to perform any obligation previously existing under a contract with the promisee is not valid consideration. Where A and B have entered into a bilateral agreement, it not infrequently happens that one of the parties, becoming The contrary was however held in Jordan v. Great Northern Ry. Co., 80 Minn. 405, 83 N. W. 391. See also to the same effect-Central Pacific R. Co. v. United States, 164 U. S. 93, 41 L. Ed. 362, 17 Sup. Ct. Rep. 35; Ennis v. Pullman Palace-Car Co., 165 Ill. 161, 46 N. E. 439; Tanner v. Merrill, 108 Mich. 58, 65 N. W. 664, 31 L. R. A. 171, 62 Am. St. Rep. 687. But see Seattle &c. R. v. Seattle Tacoma Power Co., 63 Wash. 639, 116 Pac. 289. 'Walston v. F. D. Calkins, 119 Iowa, 150, 93 N. W. 49; Whittaker Chain Tread Co. v. Standard Auto Supply Co., 216 Mass. 204, 103 N. E. 695, 51 L. R. A. (N. S.) 315; Ness v. Minnesota, etc., Co., 87 Minn. 413, 92 N. W. 333; Mintzer v. Supreme Council A. L. H., 41 N. Y. Misc. 512, 85 N. Y. S. 23. 8 Howe v. Robinson, 13 N. Y. Misc. 256, 34 N. Y. S. 85. The nature of the claims is immaterial. 10 Ostrander v. Scott, 161 Ill. 339, 43 N. E. 1089; Brewster v. Silverstein, 78 N. Y. Misc. 123, 137 N. Y. S. 912; Hull v. Johnson, 22 R. I. 66, 46 Atl. 182. dissatisfied with the contract, refuses to perform or to continue performance unless a larger compensation than that provided in the original agreement is promised him." Especially common is the situation where a builder or contractor undertakes work in return for a promised price and afterwards finding the contract unprofitable, refuses to fulfil his agreement but is induced to fulfil it by the promise of added compensation. On principle the second agreement is invalid for the performance by the recalcitrant contractor is no legal detriment to him whether actually given or promised, since, at the time the second agreement was entered into, he was already bound to do the work; nor is the performance under the second agreement a legal benefit to the promisor since he was already entitled to have the work done. In such situations and others identical in principle, the great weight of authority supports this conclusion. 12 In a few jurisdictions a contrary view has prevailed. 13 11 The situation, though less common, would involve the same legal principle if the original contract were not bilateral, executed consideration having been given for his promise to the party who subsequently becomes dissatisfied. 12 Harris v. Watson, Peake, 72; Stilk v. Myrick, 2 Camp. 317; Frazer v. Hatton, 2 C. B. N. S. 512; Jackson 13 Stoudenmeier v. Williamson, 29 Ala. 558; Bishop v. Busse, 69 Ill. 403; 'Cooke v. Murphy, 70 Ill. 96 (but see Moran v. Peace, 72 Ill. App. 135); Coyner v. Lynde, 10 Ind. 282; Holmes v. Doane, 9 Cush. 135; Rollins v. Marsh, 128 Mass. 116; Rogers v. Rogers, 139 Mass. 440, 1 N. E. 122; Thomas v. Barnes, 156 Mass. 581, 584, 31 N. E. 683; Brigham v. Herrick, 173 Mass. 460, 467, 53 N. E. 906 [but see Parrot v. Mexican C. R. Co., 207 Mass. 184, 93 N. E. 590, 34 L. R. A. (N. S.) 261]; Moore v. Detroit Locomotive Works, 14 Mich. 266; Gobel v. Lina, 47 Mich. 489, 11 N. W. 284, 41 Am. Rep. 723; Conkling v. Tuttle, 52 Mich. v. Cobbin, 8 M. & W. 790; Mallalieu v. Hodgson, 16 Q. B. 689; Harris v. Carter, 3 E. & B. 559; Alaska Packers' Assoc. v. Domenico, 117 Fed. 99, 54 C. C. A. 485; In re Riff, 205 Fed. 406; National Elec. Signaling Co. v. Fessenden, 207 Fed. 915, 125 C. C. A. 363; Frankfurt-Barnett Co. V. William Prym Co., 237 Fed. 21, 150 C. C. A. 223; Shriner v. Craft, 166 Ala. 146, 51 630, 18 N. W. 391; Scanlan v. Northwood, 147 Mich. 139, 110 N. W. 493; Osborne v. O'Reilly, 42 N. J. Eq. 467, 9 Atl. 209; Lattimore v. Harsen, 14 Johns. 330; Stewart v. Keteltas, 36 N. Y. 388. See also Peck v. Requa, 13 Gray, 407; Blodgett v. Foster, 120 Mich. 392, 79 N. W. 625; King v. Duluth Ry. Co., 61 Minn. 482, 63 N. W. 1105; Hansen v. Gaar, Scott & Co., 63 Minn. 94, 65 N. W. 254; Gaar v. Green, 6 N. Dak. 48, 68 N. W. 318; Dreifus v. Columbian Co., 194 Pa. 475, 45 Atl. 370, 75 Am. St. Rep. 704; Evans v. Oregon, etc., R. Co., 58 Wash. 429, 108 Pac. 1095, 28 L. R. A. (N. S.) 455. |