In Donnelly v. Newbold, 94 Md. 220, 222, 50 Atl. 513, the same argument is used. "The fact which appears on the face of the guaranty that the appellee was interested in the land which was to be improved by the use of the bricks constituted a consideration sufficient to support the guaranty."
In Abbott v. Doane, 163 Maes. 433, 40 N. E. 197,34 L. R. A. 33,47 Am. St. Rep. 466, the court said: "If A. has refused or hesitated to perform an agreement with B. and is requested to do so by C. who will derive a benefit from such performance, and who promises to pay him a certain sum therefor, and A. thereupon undertakes to do it, the performance by A. of his agreement in consequence of such request and promise by C. is a good consideration to support C's promise."
In Day v. Gardner, 42 N. J. Eq. 199, 203, 7 Atl. 365, the court said: "A substantial benefit accrued to her from the payment of lite taxes . . . (There was no personal obligation on the promisor to pay the taxes] but if a personal liability had existed, the duty which such liability would have imposed would have been a duty to the government which was entitled to the taxes, and not to the mortgagee, and I am not prepared to say that, in such a condition of affairs, the collateral benefit resulting to a mortgagee from the payment of taxes, which were entitled to priority in payment over his mortgage, would not constitute a perfectly valid consideration for such a contract as that on which the defense in this case rests."
In Bradley v. Glenmary Co., 64 N. J. Eq. 77, 83, 53 Atl. 49, the same reason is given. "The reduction of the amount due on the first mortgage by the payment on the principal of $2,000, with all arrears of interest, thereby reducing it to $7,000, was a direct benefit to the complainant."
In Bond v. Treahey, Upper Can. 37 Q. B. 360, 365, the court said: "There can be no doubt that the performance of an act which a person has agreed with another to perform is a good consideration to support a contract with a third person, if the latter derives benefit from the performance."
31A single exception to this statement may be found in Merrick v. Gid-dings, 1 Mack. (D. C.) 394, where in an elaborate dictum the court relying on Pollock on Contracts, states that a new bilateral agreement would be valid whereas a unilateral agreement would be invalid.
! 131a. The defendant should be liable if the consideration is beneficial to him. The whole matter of promises to perform a contractual duty to a third person has been the subject of a great deal of argument by writers on the law of contracts.33 Most of these writers have summarily assumed detriment given or promised to be the sole test of consideration, but different application of this definition has been made to the facte. Some writers find a detriment in the entering into a new obligation to a third person, and, therefore, hold the second agreement valid if bilateral in form, though invalid if unilateral.34 The assumption, however, that the new promise of the old duty imposes a new obligation, is an assumption of the whole point in issue. Such an obligation is imposed if the agreement has valid consideration on both sides; otherwise, no obligation is imposed. This was pointed out by a learned writer,35 who made the suggestion, however, that a promise to refrain from a mutual rescission of the agreement with the other party to the first contract was implied and validated the second. It may be granted that a promise not to rescind the earlier contract would serve as consideration for a promise. It is doubtful whether merely failing to rescind would be sufficient without proof that the willingness to rescind of the other party to the contract made rescission possible, and, therefore, refraining from it, a detriment. But the great difficulty with the theory is that it does not fit the facta. It may well be that one of the parties to the second contract is not aware of the existence of the earlier contract, and, in any event, a rescission of the earlier contract might obviously be made without liability on the second contract if the performance promised was actually carried out. If that be done, the second promisor cares nothing whether the original contract remains in force or is abrogated.
32Bird v. Gammon, 3 Bing. N. C. 883; Be limes Life Assurance Co., 5 Ch. 381; Be Medical Invalid, etc., Co., 8 Ch. 362; Rolfe v. Flower, L. R. 1 P. C. 27; McLaren p. Hutchinson, 22 Cat. 187; Bowen v. Kurt, 37 Iowa, 239; Laugdon v Hughes, 107 Mass. 272; Scott v. Hallock, 16 Wash. 430, 47 he. 968.
33Pollock, Contracts (1st ed.), 158; (8th ed.) 105; Anson, Contracts (1st ed.), 80; (12th ed.) 108; Langdell,
Summ. Contracts, Sec. 84, 14 Harv. L. Rev. 496; Professor Ames, 12 Harv. L. Rev. 615, 13 ibid. 29; Professor Beale, 17 Harv. L. Rev. 71; the present writer-8 Harv. L. Rev. 32, 27 ibid. 603. Professor Corbin, 27 Yale Law J. 362.
34 This reasoning is supported by Sir Frederick Pollock and Professors Langdell and Beale.
35Sir William Anson, Contracts (1st ed), 80.
It may, however, be argued that though performance of the prior contract be not a good consideration because unless it appears that both parties to that contract were willing to rescind, no detriment to the promisee can be found, yet a promise of such performance is a good consideration because, owing to the possibility of a rescission or other excuse for not carrying out the prior contract, performance of the second contract when the time for performance comes may be a detriment. This is the strongest argument that can be made under the theory of detriment. But it goes too far. In every case where the promisor is already bound to do the thing promised, it is possible that, before the time for performance arrives, the earlier bond may be released by change in the law or otherwise. The truth is that unless the parties themselves have in mind the possible discharge of the earlier obligation as a reason for the later agreement, the law deals with the question, and as a practical matter must deal with the question on the supposition that the obligations binding the parties to-day will continue to bind them.36 Aside from questions of logic, however, there seems no practical reason for holding invalid the agreement of a contractor with a third person to do what has already been promised if there is no fraud or oppression practiced which would make the agreement 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.