ment voidable in any case. A rule of consideration, therefore, which would be in conformity with definitions given by the courts and would also support such agreements is to be perferred over a rule which would not. Accordingly the test not exclusively of detriment to the promisee, but allowing benefit to the promisor as an alternative should be adopted.

§ 131b. Analogous but distinguishable cases.

On any theory of consideration it is to be noticed that if the act, the performance of which, or the promise of which, is the consideration for the new agreement, differs in any respect from the act which the double contractor was under a previous obligation to perform, the second agreement is binding; for the difference, however trifling, is enough to make the new performance detrimental, or the new promise a promise of something detrimental. And likewise if a party to a contract is no longer bound to fulfil it because of the default of his co-contractor, a promise by the injured party to complete his contract or the actual completion of it is sufficient consideration to support a promise by a third person.37

It is further to be noticed that though a promise of something which the promisor is under a legal duty to perform cannot be valid consideration for a counter-promise if the test of detriment is applied, there is no reason why such a promise should not itself be enforceable if supported by sufficient consideration. Thus if A is under contract to B to do a certain act, and C gives (not merely promises) A extra compensation in return for a promise by A to do that act, A has on any theory made a binding contract with C, since C has given valid consideration for A's promise, and it is not necessary that A's promise should be valid consideration. Cacted under no mistake and received what he asked for. Moreover, if the agreement between A and C was bilateral, though the agreement would be invalid and unenforceable on both sides, unless benefit as an alternative to detriment be accepted as part of the

7 Brownlee v. Lowe, 117 Ind. 420, 20 N. E. 301; Lindsly v. Kansas City Ry. Co., 152 Mo. App. 221, 133 S. W. 389; Sinkovitz v. Applebaum, 56 N. Y.

Misc. 527, 107 N. Y. S. 122; Cooper & Polak Works v. Rosing, 85 N. Y. Misc. 409, 147 N. Y S. 241.

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definition of consideration, yet, if C nevertheless performs his promise and the performance is accepted by A, A's promise then becomes binding since his acceptance of performance involves a receipt of valid consideration for his promise.38

There can be no doubt also on any theory of consideration that if two bilateral agreements are simultaneously entered into, the consideration on one side of each of which is a promise by the same person to do the same thing, the consideration is sufficient, for at the time when each of these promises is given the promisor is as yet under no legal obligation to perform the act promised. 39 So where the second promisor makes a promise to the earlier contractors jointly that if they will carry out their contract he will confer a benefit on one or both of them, the performance of the earlier contract is a legal detriment to the promisees as well as a benefit to the promisor. For though neither promisee singly had a right to refrain from performance of the earlier contract, both of

38 In Ward v. Goodrich, 34 Col. 369, 82 Pac. 701, the court said: "While it is settled that the promising to do, or the doing of that which the promisor is already legally bound to do, does not as a rule constitute consideration for a reciprocal promise, or support a reciprocal undertaking given by the promisee, it by no means follows that such promise may not be enforced against such promisor by the promisee, although its enforcement compels the performance of that which was already a legal obligation."

In Reynolds v. Jacobs, 10 N. S. Wales L. R. 268, the plaintiff and defendant being joint judgment debtors, the defendant promised to settle the claim, the plaintiff agreeing to leave the matter to him and later to pay half the cost of settlement. The defendant failed to keep his promise and the plaintiff's property was levied on and a baliff put in house. The defendant was held liable (though his promise it will be observed was merely to fulfil his legal obligation to the creditor) because when the "agreement was

made the plaintiff had the power and the right to pay the amount and thereby protect himself," and at the request of the defendant the plaintiff left the matter to him. See also Bochterle v. Saunders, 36 R. I. 39, 88 Atl. 803.

39 In Petze v. Leary, 117 N. Y. App. Div. 829, 830, 102 N. Y. S. 960, the court said in referring to such a case: "If the making of the contract by the plaintiff with the corporation had been the consideration to the defendant for the making of the contract by him with the plaintiff, or, conversely, if the plaintiff had been induced to enter into his contract with the corporation by the contract of the defendant with him, there would be a legal consideration."

A case of the same sort is Champlain Construction Co. v. O'Brien, 117 Fed. 271, where the defendant in order to induce bidders, who had not yet made a construction contract to do so, promised an additional sum if the contractors would execute the contract which was under negotiation.

them jointly had such a right and their refraining from exercising it involved a detriment.40

§ 132. Performance or promise of a performance of a duty imposed by law is not valid consideration.

If a promisee is already bound by official duty to render a service, it is no detriment to him, and no benefit to the promisor, beyond what the law requires the promisee to suffer or to give, for him to do or agree to do the service on request. Though the previous legal duty does not run to the promisee under the later agreement, it runs to the public of which the promisee is a member, and as such he has a right, even if not one enforceable at law, to the performance in question. Therefore no contract can be based on such consideration. This principle is applicable whatever the character of the official, whether a sheriff, constable or police officer, 41 an inspector, 42 a customs officer, 43 or a director of a bank, 44 a district attorney,

* De Cicco v. Schweizer, 221 N. Y. 431, 117 N. E. 807, L. R. A. 1918 E, 1004. In this case the defendant agreed with his daughter and a man to whom she was engaged, that after their marriage, he would pay a certain allowance to the daughter. The court discusses the various authorities on the. general question of the sufficiency of doing what the promisee is bound to a third person to do as consideration for a promise.

1 Witty v. Southern Pac. Co., 76 Fed. 217; Union Pacific R. Co. v. Belek, 211 Fed. 699; Morrell v. Quarles, 35 Ala. 544, 548; St. Louis, etc., Ry. Co. v. Grafton, 51 Ark. 504, 11 S. W. 702; Chambers v. Ogle, 117 Ark. 242, 174 S. W. 532; Lees v. Colgan, 120 Cal. 262, 52 Pac. 502; Matter of Russell's Application, 51 Conn. 577, 50 Am. Rep. 55; Hogan v. Stophlet, 179 Ill. 150, 53 N. E. 604, 44 L. R. A. 809; Hayden v. Souger, 56 Ind. 42, 48, 26 Am. Rep. 1; Taft v. Hyatt (Kans.), 180 Pac. 213; Thacker v. Smith, 103 Kans. 641, 175 Pac. 983; Marking v. Needy, 8 Bush, 22; Studley v. Ballard,

45

169 Mass. 295, 47 N. E. 1000, 61 Am. St. Rep. 286; Hartley v. Granville, 214 Mass. 38, 102 N. E. 942; Foley v. Platt, 105 Mich. 635, 63 N. W. 520; Warner v. Grace, 14 Minn. 487; Day v. Putnam Ins. Co., 16 Minn. 408; Ex parte Gore, 57 Miss. 251; Kick v. Merry, 23 Mo. 72, 66 Am. Dec. 658; Thornton v. Missouri, etc., Ry. Co., 42 Mo. App. 58; Ward v. Adams, 95 Neb. 781, 146 N. W. 950; Hatch v. Mann, 15 Wend. 44; Gillmore v. Lewis, 12 Ohio, *281; Smith v. Whildin, 10 Pa. St. 39, 49 Am. Dec. 572; Stamper v. Temple, 6 Hump. 113, 44 Am. Dec. 296; Brown v. Godfrey, 33 Vt. 120.

42 Brophy v. Marble, 118 Mass. 548.

43 Davies v. Burns, 5 Allen, 349. 44 Stacy v. State Bank of Illinois, 5 Ill. 91.

45 McCook County v. Burstad, 30 S. Dak. 266, 138 N. W. 303. Taking proceedings for the extradition of a criminal was held insufficient consideration for a promise to pay costs exacted from the complainant by the district attorney.

or other official. 46 But if the official upon request does, or agrees to do more than his legal duty requires, he thereby gives sufficient consideration to support a promise.47 The return of lost articles is held sufficient consideration for a promise of reward, though doubtless a finder is under some legal duty, if not to return what he has found, at least to allow the owner to come and get it.48 The same principles are applicable to other promises than those of rewards and where other legal duties than those of officials are involved. An agreement by a common carrier, therefore, to fulfil obligations imposed on it by law, as to carry a mail clerk,49 or to fence its right-of-way, 50 or to allow the construction of a sewer under its track on the city streets, 51 to maintain or repair its bridges and the approaches thereto,52 is not sufficient consideration for a promise to the carrier, when the existing law requires the carrier to do or permit these things. Similarly

46 Writing personal letters for members of the Assembly was held to be part of the duty of Assembly stenographers and therefore writing such letters would not support a promise by an individual member to pay therefor. Temple v. Brooks, 165 N. Y. App. Div. 661, 151 N. Y. S. 490.

47 England v. Davidson, 11 A. & E. 856; Union Pacific R. Co. v. Belek, 211 Fed. 699; Morrell v. Quarles, 35 Ala. 544; Chambers v. Ogle, 117 Ark. 242, 174 S. W. 532; Harris v. More, 70 Cal. 502, 11 Pac. 780; Hayden v. Souger, 56 Ind. 42, 26 Am. Rep. 1; Bronnenberg v. Coburn, 110 Ind. 169, 11 N. E. 29; Marsh v. Wells, Fargo & Co., 88 Kan. 538, 129 Pac. 168, 43 L. R. A. (N. S.) 133; Elkins v. Board, 91 Kan. 518, 120 Pac. 542, 138 Pac. 578, 51 L. R. A. (N. S.) 638, Ann. Cas. 1915 D, 257; Smith v. Fenner, 102 Kan. 830, 172 Pac. 514, L. R. A. 1918 E, 348; Trundle v. Riley, 17 B. Mon. 396; Pilie v. New Orleans, 19 La. Ann. 274; Studley v. Ballard, 169 Mass. 295, 47 N. E. 1000, 61 Am. St. Rep. 286; Hartley v. Granville, 216 Mass. 38, 102 N. E. 942; Forsythe v. Murnane,

113 Minn. 181, 129 N. W. 134; Smith v. Vernon County, 188 Mo. 501, 87 S. W. 949, 70 L. R. A. 59; Gregg v. Pierce, 53 Barb. 387; McCandless v. Allegheny, etc., Co., 152 Pa. 139, 25 Atl. 579; Texas Cotton-Press, etc., Co. v. Merchants' Fire Co., 54 Tex. 319, 38 Am. Rep. 627; Davis v. Munson, 43 Vt. 676, 5 Am. Rep. 315; Reif v. Paige, 55 Wis. 496, 13 N. W. 473, 42 Am. Rep. 731; Kinn v. First Nat. Bank, 118 Wis. 537, 95 N. W. 969, 99 Am. St. Rep. 1012. See also Bent v. Wakefield Bank, 4 C. P. D. 1; Long v. Neville, 36 Cal. 455, 95 Am. Dec. 199; Marsh v. Gold, 2 Pick. 285; Commonwealth v. Vandyke, 57 Pa. 34. Compare Hatch v. Mann, 15 Wend. 44; Tobin v. McComb (Tex. Civ. App.), 156 S. W. 237.

48 Berthiaume v. Doe, 22 Cal. App. 78, 133 Pac. 515.

as a common carrier is under legal obligation to carry goods tendered for transportation with full common-law liability at the legal rate of compensation for such service, a promise by the carrier to transport for that rate of compensation, is not sufficient consideration for a counter-promise by the shipper agreeing to a limitation of the carrier's common-law liability.53 But it is not necessary that the consideration for an agreement limiting liability be separate and independent. A reduced rate will support the whole agreement to carry with limited liability.54 So a promise in consideration of attendance at court by a witness bound to appear, 55 or in consideration of support of a child by its parent,56 or of support of a pauper by a township bound to support him,57 or of obedience by a ward to his guardian, 58 is invalid for want of sufficient consideration. A promise by an executor to comply with his legal duties, 59 the resignation of a trustee who is a defaulter and therefore bound to resign,60 the release of a mortgage after the debt has been paid,61 are likewise insufficient to support a promise.62 As everybody is under a legal duty not to commit a tort, returning property to its owner, or otherwise refraining

53 Illinois Central R. Co. v. Insurance Co., 79 Miss. 114, 30 So. 43; Kellerman v. Kansas City, etc., R. Co., 136 Mo. 177, 34 S. W. 41, 37 S. W. 828; Ward v. Missouri Pac. Ry. Co., 158 Mo. 226, 58 S. W. 28; Wilson v. Mo. Pac. Ry. Co., 66 Mo. App. 388; Bissell v. New York Central R. Co., 25 N. Y. 442, 82 Am. Dec. 369; Nelson v. Hudson River R. Co., 48 N. Y. 498; Gardner v. Southern R. Co., 127 N. C. 293, 37 S. E. 328; Lousiville & N. R. Co. v. Gilbert, 88 Tenn. 430, 12 S. W. 1018, 7 L. R. A. 162; Missouri, etc., Ry. Co. v. Darlington (Tex. Civ. App.), 40 S. W. 550; Berry v. West Virginia, etc., R. Co., 44 W. Va. 538, 30 S. E. 143, 67 Am. St. Rep. 781; Schaller v. Chicago, etc., Ry. Co., 97 Wis. 31, 71 N. W. 1042.

54 Cau v. Texas & P. R. Co., 194 U. S. 427, 48 L. Ed. 1053; Charnock

. Texas & P. R. Co., 194 U. S. 432,

48 L. Ed. 1057, and see cases in the preceding note.

55 Willis v. Peckham, 1 Br. & B. 515. 58 Crowhurst v. Laverack, 8 Ex. 208; Poetker v. Lowry, 25 Cal. App. 616, 144 Pac. 981; Nine v. Starr, 8 Oreg. 49. 57 Wimer v. Worth Township, 104 Pa. 317.

58 Keith v. Miles, 39 Miss. 442, 77 Am. Dec. 685.

59 Sullivan v. Sullivan, 99 Cal. 187, 33 Pac. 862; Orr v. Sanford, 74 Mo. App. 187.

60 Withers v. Ewing, 40 Ohio St. 400.

61 Chilson v. Bank, 9 No. Dak. 96, 81 N. W. 33; Jones v. Risley, 91 Tex. 1, 32 S. W. 1027.

62 In Day v. Gardner, 42 N. J. Eq.. 199, 203, 7 Atl. 365, it is, however, held that the discharge of taxes is sufficient consideration to support a promise by one interested in having the payment made.