Sec 498

When a legal obligation already exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity. Such promise adds nothing to and takes nothing from the original obligation, and being without consideration to support it, will not sustain a suit.6 Thus, although my promise to pay the debt secured by a lost note signed by me will bind me, if it be in consideration of my being indemnified from suit on such note;7 yet a mere promise to pay such debt, without any new consideration, cannot be regarded as imposing on me a binding duty.8 Even a promise to pay a specific sum on account of a liability for unliquidated damages is invalid, unless the promise be conditioned upon some new consideration, such as delay or forbearance or release.1 A cumulative promise of marriage, also, one promise being already in force, is a nullity.2

Distinction between "good" and "valuable" consideration nugatory.

Cumulative promise a nullity.

1 That equity will not set aside an executed gift, see infra, sec 538; and set supra, sec 164; infra, sec 751.

2 2 Bl. Com. 297.

3 Infra, sec 540; supra, sec 494.

4 Leake, 2d ed. 614; Pulvertoft v. Pulvertoft, 18 Ves. 100; Violett v. Patton, 5 Cranch, 142.

5 Infra, sec 537.

6 McManus v. Bark, L. R. 5 Ex. 65; Deacon v. Gridley, 15 C. B. 295; Malla-lieu v. Hodgson, 16 Q. B. 689; Robb v. Mann, 11 Penn. St. 300; Gilmore v. Green, 14 Bush, 772.

7 Williamson v. Clements, 1 Taunt. 523; see Conover v. Stillwell, 34 N. J. L. 54.

8 Davis v. Dodd, 4 Taunt. 602.

Sec 499

An agreement between debtor and creditor, however, by which, before breach, the time for performance is extended, though on the same conditions or on the same rate of interest, cannot be called cumulative. This is eminently the case with loans, the extension of which gives the creditor the benefit of a renewed fixed investment, not liable to be paid off at the debtor's will, which constitutes the detriment to the debtor.3 The same rule is applicable to other cases of extension.4 But a mere agreement to give time, without any advantage coming to the creditor from the delay, does not bind the creditor. The debtor's promise to pay is only cumulative, and no consideration for the promise to delay.5 There must be some advantage moving to the creditor in order to make his extension binding.6 What has been said applies to all cases of modification and reconstruction. In such cases the abandonment of the old agreement is a good consideration for the new agreement.7 But there must be something surrendered by the promisee to make the promise binding. The thing surrendered may be very slight; but if appreciable, it is an adequate consideration. And the reconstruction of an old contract, based on a past compromise, contains mutual concessions, which, as constituting a novation, form in themselves a binding contract.8

But agreement for extension not cumulative.

1 Smart v. Chell, 7 Dowl. 781; see Bryan v. Brazil, 52 Iowa, 350.

2 Raymond v. Sallick, 10 Conn. 480.

3 Infra, sec 870, 1000; Chute v. Pat-tee, 37 Me. 103; McNish v. Reynolds, 10 Weekly Notes, 24, cited infra, sec 870; Jones v. Horner, 60 Penn. St. 214; Fawcett v. Freshwater, 31 Oh. St. 637; and cases cited Wald's Pollock, 162.

4 Goss v. Nugent, 5 B. & Ad. 58; Carrier v. Dilworth, 59 Penn. St. 406.

5 Bates v. Starr, 2 Vt. 536; Russell v.

Buck, 11 Vt. 166; Kellogg v. Olmsted, 25 N. Y. 189; Parmellee v. Thompson, 45 N. Y. 58; Grossman v. Wohlleben, 90 111. 537; and cases cited Wald's Pollock, ut supra; Deacon v. Gridley, 15 C. B. 295.

6 Wright v. Bartlett, 43 N. H. 548; Beckner v. Carey, 44 Ind. 89; Clark-son v. Creely, 35 Mo. 95; Martin v. Black, 20 Ala. 309.

7 Infra, sec 852 et seq.

8 Infra, sec 856 et seq.