Packing Co. v. Lewis C. Troughton, Inc., 90 Wash. 196,155 Pac. 758.

14 This reasoning was adopted in- Lattimore v. Hansen, 14 Johns. 330. Mr. Justice Holmes, in his early book, The Common Law, p. 299, seems to regard a contract in somewhat this way, and he has indicated in judicial opinions that he still holds the same view. See, e. g., Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 640, 47 L. Ed. 1171, 23 Sup. Ct. 764.

14a See supra, Sec. 103f, ad fin. See Corbin, 27 Yale L. J., at p. 303.

15 This is illustrated by the cases in equity which hold that a contract if of such a nature as to be enforceable in equity will be specifically enforced, though the contract provides that in case of breach the damages shall be liquidated at a specified amount. The defendant has no right to pay the damages and claim exemption from his promise. See Fry on Specific Performance, Chap. 111; Srolowits v. Roseman, (Pa. 1919), 107 Atl. 322; Wright v. Suydam, 72 Wash. 687, 131 Pac. 239. Similarly where an action at law is allowed a seller for recovery of the full price from a buyer in default, a provision for liquidated damages will not prevent a seller from exercising this right. Korman v. Trainer, 2SS Pa. 362,101 Atl. 1051. In The Blairmore, 11898) A. C. 593, 607, the court laid down the rule contended for in the text that a party to a contract cannot escape obligations which he has undertaken by offering an indemnity or damages for a breach. See infra, Sec. 781.

16See infra, Sec.1828.

17See infra, Sec. 1829.

18In Noble v. Ward, L. R. 1 Exch. 117, Bramwell B., said: "It is attempted to nay that what took place when contract C was made was twofold: first that the old contracts were given up; secondly a new one was made. But this is not so. What was done was all done at once-was one transaction."

19 Steele v. Syracuse University, 174 App. D. 41, 160 N. Y. S. 39.

20Teele v. Mayer, 173 N. Y. App. D. 869, 160 N. Y. 8. 116;

21 Lira v. Schuck, 106 Md. 220, 67 Atl. 286, 11 L. R. A. (N. S.) 789, 124 Am. St. Rep. 481; King p. Duluth, etc., Ry. Co., 61 Minn. 482, 63 N. W. 1105. See also Grant Marble Co. v. Abbot, 142 Wis. 279, 124 N. W. 204, 11 Mich. L. Rev. 434 (Ballantnie); 17 Yale L. J. 470, 27 ib. at p. 373 (Cor-bin).

22 See Seymour v. Hughes, 105 N. Y. S. 249, 55 N. Y. Misc. 248. If they do there is no difficulty in finding sufficient consideration, Listen v. S. S. Carpathian, [1915] 2 K. B. 42; John King Co. v. Louisville, etc., R. Co., 131 Ky. 46,114 S. W. 308, 116 S. W. 1201, and recovery could be had on a quasi-contractual obligation without a new promise. Howard v. Harvard Congregational Soc., 223 Mass. 562, 112 N. E 233. See infra, Sec. 1569.

23 Gaar v. Green, 6 N. Dak. 48, 68 N. W. 318; Schneider v. Heinsheimer, 55 N. Y. S. 630, 26 N. Y. Miec. 11. The contrary decision of Peck v. Requa, 13 Gray, 407, is opposed to received doctrines of consideration,

24 See supra, Sec. 120.

Sec. 131. Whether performance or promise to perform a contractual duty previously undertaken with a third person is valid consideration. It is clear that when one under a contractual duty to another to do a certain act performs it under an agreement that it shall be the consideration for the promise of a third person, he incurs no legal detriment since he previously was bound to perform that very act. Further, if instead of actually performing, the party previously bound promises to perform what he has already undertaken, his promise is of something which is no detriment for him to perform. It is true, however, that though such a performance or promise may not involve a detriment, or the promise of a detriment, to the one who does or promises to do the act, a benefit to which the other party to the bargain was not previously legally entitled may be thereby given or promised him. This type of case, therefore, seems squarely to raise the question whether detriment given or promised by the promisee is the sole test of consideration, or whether benefit received from the other party is equally effective. In England it has been settled that such agreements are valid contracts.27 In the United States the great weight

25 Davis v. Morgan, 117 Ga. 504, 43 S. E. 732, 61 L. R. A. 148, 97 Am. St. Rep. 171; Carpenter v. Taylor, 164 N. Y. 171, 68 N. E. 63; Price v. Press Pub. Co., 117 N. Y. App. Div. 864, 103 N. Y. Supp. 296; Obrents v. Wea-enfeld 103 N. Y. Misc. 664, 170 N. Y. S. 966; Hillman v. Young, 64 Or. 73, 129 Pac. 124; Freeman v. Morrow (Tax. Civ. App.), 166 8. W. 284. But where the employer was given a right to renew the contract, which be had not previously had, an undertaking to give the employee higher wages for the remaining period of the subsisting contract was supported by valid consideration. Triangle Waist Co. v. Todd, 223 N. Y. 27, 119 N. E. 85.

26 Loth v. Harris, 76 N. Y. Misc. 606, 135 N. Y. S. 563.

27Shadwell v. Shadwell, 30 L. J. C. P. (N. 8.) 146; Scotson v. Pegg, 6 H. & N. 296; Chichester v. Cobb, 14 L. T. Rep. (N. S.) 433; Skeete v. Silberberg, 11 T. L. Rep. 491. The reasoning in Shadwell v. Shadwell, of authority is opposed to the validity of such agreements, whether unilateral or bilateral in form.28 Some American cases, however, follow the 'English decisions and hold the second agreement valid.29 supra, is unsatisfactory; but in Scotson v. Pegg, supra, the court squarely rests the decision on the ground that the defendant had received a benefit. Jones v. Waite, 5 Bing. N. C. 341, a decision of the Exchequer Chamber (affirmed in the House of Lords, 9 Cl. & F. 101), seems not to have been cited or considered in Shadwell v. Shadwell and Scotson v. Pegg. Although that decision turned on a different point, the language and reasoning of several of the judges is clear authority that the second agreement is invalid.

28 Johnson's Adm. v. Seller's Adm., 33 Ala. 265 (bilateral); (cf. Humes v. Decatur L. I. Co., 98 Ala. 461, 473, 13 So. 368); Ellison p. Water Co., 12 Cal. 542, 653 (bilateral); Havana Press Drill Co. v. Ashurat, 148 111. 115, 35 N. E. 873 (promise to perform existing obligation to third party no valid consideration for license to use patent); Peelman v. Peelman, 4 Ind. 612 (unilateral); Ford v. Gamer, 15 Ind. 298 (bilateral); Reynolds v. Nugent, 25 Ind. 328 (unilateral); Ritenour v. Mathews, 42 Ind. 7 (unilateral. In this case the promise was by a surety to the principal debtor in consideration of being relieved from liability); Harris v. Cassady, 107 Ind. 158, 8 N. E. 29 (bilateral); Brownlee v. Lowe, 117 Ind. 420, 422, 20 N. E. 301 (general dictum); Barringer v. Ryder, 119 Iowa, 121, 93 N. W. 56 (promise to perform obligation to a third person held insufficient consideration for a conveyance); Ford v. Crenshaw, 1 Litt. (Ky.) 68 (in statement of facte stated as unilateral, but in discussion stated as mutual promises); Holloway's Assignee v. Rudy, 22 Ky. L. Rep. 1406, 60 3. W. 650 (unilateral); Schiller v. Myton, 48 Kans. 282, 20 Pac. 163