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, 44a district attorney,45 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 as a common carrier is under legal obligation to cany 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 it is, however, held that the discharge of taxes is sufficient consideration to support a promise by one interested in having the payment from a tort is not a sufficient consideration.63 The only qualification that must be borne in mind in connection with this matter, is that if there is reasonable doubt and honest belief that a certain claim is not tortious, forbearance of the claim will be a sufficient consideration although in fact the exercise of the claim would have involved the commission of a tort.64
40 De Cicco p. Schwewer, 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.
41Witty p. 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. p. Grafton, 51 Ark. 504, 11 S. W. 702; Chambers p. Ogle, 117 Ark. 242, 174 S. W. 532; Lees p. Colgan, 120 Cal. 262, 52 Pac. 502; Matter of Russell's Application, 51 Conn. 577, 50 Am. Rep. 55; Hogan v. Stophlet, 179 111. 150, 53 N. E. 604, 44 L. R. A. 809; Hayden p. Souger, 56 Ind. 42, 48, 26 Am. Rep. 1; Taft p. Hyatt (Kans.), 180 Pac. 213; Thaeker v. Smith, 103 Kans. 641, 175 Pac. S83; Marking p. Needy, 8 Bush, 22; Studley p. Ballard,.
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 p. Grace, 14 Minn. 487; Day v. Putnam Ins. Co., 16 Minn. 408; Ex parte Gore, 57 Miss. 251; Kick p. Merry, 23 Mo. 72, 66 Am. Dec. 658; Thornton p. Missouri, etc., Ry. Co., 42 Mo. App. 58; Ward v. Adams, 96 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.
42Brophy v. Marble, 118 Mass. 548.
43 Daviess v. Burns, 5 Allen, 349.
44 Stacy p. State Bank of Illinois, 5 111. 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.
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, 166 N. Y. App. Div. 661, 151 N. Y. S. 490.
47 England v. Davidson, 11 A. & E. S56; Union Pacific R. Co. v. Belek, 211 Fed. 699; Morrcll v. Quarles, 35 Ala. 544; Chambers v. Ogle, 117 Ark. 242, 174 8. W. 532; Harris v. More, 70 Cal. 602, 11 Pac. 780; Hayden v. Souger, 66 Ind. 42, 26 Am. Rep. 1; Bronnen-berg 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. It. 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; Foraythe v. Murnane,