36 Thus if A promise B to pay, next week, Sec.10 which A already owed at the time of the promise in return for a promise by B, it is dear, under the authorities, that no valid contract has been formed. See supra, Sec. 120. Yet it is possible that by next week it might have been released by the creditor or discharged by law, so that A's performance would be detrimental to him. Illustrations of this sort might be multiplied.
5 131b. Analogous but distinguishable cases.
On any theory of consideration it is to be noticed that if the act, the performance of which, or the promise of which, is the consideration for the new agreement, differs in any respect from the act which the double contractor was under a previous obligation to perform, the second agreement is Wilding; for the difference, however trifling, is enough to make the new performance detrimental, or the new promise a promise of something detrimental. And likewise if a party to a contract is no longer bound to fulfil it because of the default of his co-contractor, a promise by the injured party to complete his contract or the actual completion of it is sufficient consideration to support a promise by a third person.37
It is further to be noticed that though a promise of something which the promisor is under a legal duty to perform cannot be valid consideration for a counter-promise if the test of detriment is applied, there is no reason why such a promise should not itself be enforceable if supported by sufficient consideration. Thus if A is under contract to B to do a certain act, and C gives (not merely promises) A extra compensation in return for a promise by A to do that act, A has on any theory made a binding contract with C, since C has given valid consideration for A's promise, and it is not necessary that A's promise should be valid consideration. C acted under no mistake and received what he asked for. Moreover, if the agreement between A and C was bilateral, though the agreement would be invalid and unenforceable on both sides, unless benefit as an alternative to detriment be accepted as part of the definition of consideration, yet, if C nevertheless performs his promise and the performance is accepted by A, A's promise then becomes binding since his acceptance of performance involves a receipt of valid consideration for his promise.38
37Brownlee v. Lowe, 117 Ind. 420, 20 N. E. 301; Lindsly v. Kansas City Ry. Co., 152 Mo. App. 221, 133 S. W. 389; Sinkovits v. Applebaum, 56 N. Y.
Misc. 527, 107 N. Y. S. 122; Cooper & Polak Works v. Rosing, 85 N. Y. Misc. 409, 147 N. Y S. 241.
There can be no doubt also on any theory of consideration that if two bilateral agreements are simultaneously entered into, the consideration on one side of each of which is a promise by the same person to do the same thing, the consideration is sufficient, for at the time when each of these promises is given the promisor is as yet under no legal obligation to perform the act promised.39 So where the second promisor makes a promise to the earlier contractors jointly that if they will carry out their contract he will confer a benefit on one or both of them, the performance of the earlier contract is a legal detriment to the promisees as well as a benefit to the promisor. For though neither promisee singly had a right to refrain from performance of the earlier contract, both of them jointly had such a right and their refraining from exercising it involved a detriment.40
38In Ward v. Goodrich, 34 Col. 369, 82 Pac. 701, the court said: "While it is settled that the promising to do, or the doing of that which the promisor is already legally bound to do, does not as a rule constitute consideration for a reciprocal promise, or support a reciprocal undertaking given by the promisee, it by no means follows that such promise may not be enforced against such promisor by the promisee, although its enforcement compels the performance of that which was already a legal obligation."
In Reynolds v. Jacobs, 10 N. S. Wales L. R, 268, the plaintiff and defendant being joint judgment debtors, the defendant promised to settle the claim, the plaintiff agreeing to leave the matter to him and later to pay half the cost of settlement. The defendant failed to keep his promise and the plaintiff's property was levied on and a baliff put in house. The defendant was held liable (though his promise it will be observed was merely to fulfil his legal obligation to the creditor) because when the " agreement was made the plaintiff had the power and the right to pay the amount and thereby protect himself," and at the request of the defendant the plaintiff left the matter to him. See also Boch-terle v. Saunders, 36 R. I. 39, 88 At!. 803.
39In Petze v. Leary, 117 N. Y. App. Div. 829, 830, 102 N. Y. S. 960, the court said in referring to such a case: "If the making of the contract by the plaintiff with the corporation had been the consideration to the defendant for the making of the contract by him with the plaintiff, or, conversely, if the plaintiff had been induced to enter into his contract with the corporation by the contract of the defendant with him, there would be a legal consideration."
A case of the same sort is Champ-lain Construction Co. v. O'Brien, 117 Fed. 271, where the defendant in order to induce bidders, who had not yet made a construction contract to do so, promised an additional sum if the contractors would execute the contract which was under negotiation.