(a) By virtue of a prior contract, or
(b) By law, independently of contract.
75. ADDITIONAL COMPENSATION. In some jurisdictions, a promise to perform, or performance of, an existing contract, is held to be consideration for a promise by the other party to pay additional compensation; and in some jurisdictions such promise to perform or performance is held to be consideration for a promise by a third person to pay additional compensation.
Another form of unreality of consideration is where the alleged consideration is a promise to do, or actually doing, what a person is already bound to do. The promisor gets no more in return for his promise than the promisee was already bound to give, and therefore receives no consideration.8 Such prior obligation may arise (1) from a previous contract, or (2) from law, independently of contract.
Cent. Dig. §§ 85-50; "Contracts," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 828-880.
5 Miles v. New Zealand, etc., Co., 32 Ch. D. 266, per Cotton, L. J. See "Compromise and Settlement," Dec. Dig. (Key-No.) § 6; Cent. Dig. §§ 35-50; "Contracts," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 328-880.
6 Conover v. Stillwell, 34 N. J. Law, 54; Jennings v. Chase, 10 Allen.(Mass.) 526; Warren y. Hodge, 121 Mass. 106; Schuler v. Myton, 48 Kan. 282, 28
Where, for instance, a seaman deserted a vessel, and the captain promised the rest of the crew extra pay if they would work the vessel home, the promise was held to be without consideration, because the seamen had, before sailing, agreed to do all they could under all the emergencies of the voyage, and the desertion by some of the seamen was an emergency. Here the seamen promised no more than their contract bound them to do.7 Where a public officer is required by law to make an arrest, a promise by an individual to pay him for doing so is without consideration; 8 and so it is with a promise to pay a public officer or a witness extra compensation for performing services for which his fees are fixed by law.9 In these cases the officer or witness does no more than he is required by law to do, and therefore gives no consideration. Of course, it is otherwise with agreements to pay officers for doing something beyond the scope of their official duties.10 The doctrine also applies to a promise to do or doing what one may be compelled to do in equity.11 It will be seen from the cases mentioned that the actual performance of that which a man is legally bound to do stands on the same footing as his promise to do what he is legally compellable to do.
Pac. 163; Holmes v. Boyd, 90 Ind. 332; Keffer v. Grayson, 76 Va. 517, 44 Am. Rep. 171; Harris v. Cassaday, 107 Ind. 158, 8 N. E. 29; Stuber v. Schack, S3 111. 191; Phoenix Ins. Co. v. Rink, 110 111. 538; Harriman v. Harriman, 12 Gray (Mass.) 341; Tucker v. Bartle, 85 Mo. 114; Eblin v. Miller's Ex'rs, 78 Ky. 371; Sherwin v. Brigham, 39 Ohio St. 137; Watts v. Frenche, 19 N. J. Eq. 407; Bush v. Rawlins, 89 Ga. 117, 14 S. E. 886; Jenness v. Lane, 26 Me. 475; Wendover v. Baker, 121 Mo. 273, 25 S. W. 918; Arend v. Smith, 151 N. Y. 502, 45 N. E. 872; Allen v. Plasmeyere, 3 Neb. (Unof.) 187', 90 N. W. 1125; Barringer v. Ryder, 119 Iowa. 121, 93 N. W. 56; Wescott v. Mitchell, 95 Me. 377, 50 Atl. 21. On this principle, a promise by a creditor after maturity of the debt, to extend the time of payment, is not binding unless some collateral consideration is received. Hoffman v. Coombs, 9 Gill (Md.) 284; Turn-bull v. Brock, 31 Ohio St. 649; Pfeiffer v. Campbell, I11 N. Y. 631, 19 N. E. 498; Holmes v. Boyd, 90 Ind. 332; Ives v. Bosley, 35 Md. 262, 6 Am. Rep. 411; Helms v. Crane, 4 Tex. Civ. App. 89, 23 S. W. 392; Skinner v. Mining Co. (C. C.) 96 Fed. 735. A promise to extend in consideration of a promise to pay the debt with interest at the same rate is without consideration. Kellogg v. Olmsted, 25 N. Y. 189; Olmstead v. Latimer, 158 N. Y. 313, 53 N. E. 5, 43 L R. A. 685; Wilson v. Powers, 130 Mass. 127; Holmes v. Boyd, 90 Ind. 332; Price v. Mitchell, 23 Wash. 742, 63 Pac, 514.
It has been held, however, that a promise to extend is supported by a promise to pay interest at the same, or even a less rate, for a certain time, since the debtor foregoes his right to pay before that time. Fawrett v. Freshwater, 31 Ohio St. 637; Fowler v. Brooks, 13 N. H. 240; Simpson v. Evans, 44 Minn. 419, 46 N. W. 908. See, also, Moore v. Redding, 69 Miss. 841, 13 South. 849. See "Contracts," Dec. Dig. (Key-No.) § 75; Cent. Dig. §§ 273-2S5.
7 Stilk v. Meyrick, 2 Camp. 317. See, also, Harris v. Carter, 3 El. & Bl. 559; Bartlett v. Wyman, 14 Johns. (N. Y.) 260; Vanderbilt v. Schreyer, 91 N. Y. 392. It would have been different if risks had arisen which were not contemplated by the contract For instance, such a contract as in the case cited contains an implied warranty that the ship shall be seaworthy. So, where a seaman had signed articles of agreement to navigate a vessel, and the vessel proved unseaworthy, a promise of extra pay to induce him to abide by his contract was held binding. Turner v. Owen, 3 Fost. & F. 177. See "Contracts," Dec. Dig. (Key-No.) § 75; Cent. Dig. §§ 273-285.
8 Smith v. Whildin, 10 Pa. 39, 49 Am. Dec. 572; Hogan v. Stophlet, 179 111. 150, 53 N. E. 604, 44 L. R. A. 809. See post, p. 352. See "Contracts," Dec. Dig. (Key-No.) § 75; Cent. Dig. §§ 278-2S5.
The rule above stated would seem to be an obvious result of the doctrine of consideration, but some of its applications have met with severe criticism, and there is much direct conflict in the decisions on the subject.