This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If A makes a promise to B in consideration of B's doing or promising to do what he is already bound to do, the question of the sufficiency of such act or promise of B as a consideration is presented. While it would seem that the origin and source of B's obligation and the person to whom B owes such obligation ought to be immaterial, the views which have been taken by some of the courts and writers upon this question, make it necessary to distinguish the source of the obligation and the person to whom such obligation is owed. B's obligation may be one which is imposed upon him by the law without regard to any intention or agreement upon his part to assume such liability. Such obligation is, of course, independent of such contract. It may be owing by B to A, to some specific third party, or to the general public. On the other hand, B's obligation may be one which B has created for himself by entering into a contract. This, in turn, may be a contract which B has entered into with A, or it may be a contract which B has entered into with some definite third person, such as X. From the nature of contract law, there can be no contractual obligation toward the public at large. The question of the performance of obligations which are imposed upon the promisee by law and not by contract will be considered first. The doing of what one is bound by law to do or promising so to do, are neither of them considerations for a promise made to the person upon whom the legal liability rests to induce him to perform such act or to make such promise.1 Surrender of property to the owner by one having no right thereto,2 as a return of stolen property by the holder;3 or a surrender of personal property taken possession of under a mortgage given by one not the owner;4 surrender by executor of a life insurance policy of decedent to the beneficiary thereof;5 or indorsement to the owner of property insured of an insurance policy made payable by mistake to another;6 a promise by a mortgagor in default to surrender the mortgaged property to the mortgagee, where the mortgagee could have recovered possession by ejectment;7 release of a mortgage after payment of the debt secured thereby;8 a promise to reduce the interest agreed upon in a usurious contract, to the rate which the law provides as the rate of interest in such usurious contracts, without regard to the agreement of the par-ties;9 or shipment of property by the holder to a third person with the owner's consent,10 are not considerations; nor is a promise to pay rent, made to prevent unlawful eviction,11 nor an agreement by a railroad to fence its right of way as required by law,12 or to repair its bridges,13 or to allow a sewer to be built in a public street under its tracks,14 or to carry a mail clerk;15 nor payment by a railroad of medical attendance on one injured by its negligence;16 nor a surrender of a lease by one having title thereto as trustee to the cestui que trust;17 nor the resignation of a defaulting trustee;18 nor a promise by an executor,19 to do what the law requires him to do. No consideration exists for a promise by A, a city, to pay the cost of building and repairing approaches to a bridge to B, a railway company, on consideration of B's building the bridge, if B is bound by law to build and repair both the bridge and the approaches.20 Since a common carrier is bound by law to carry goods offered to him for transportation at his regular rates, his promise to do so, in consideration of such regular rates, and of an agreement by the shipper limiting the carrier's common-law liability, is no consideration for the shipper's promise thus relieving the carrier.21 A reduced rate of freight is a sufficient consideration in such cases.22 The act of a partner, who has been receiving a salary, in withdrawing from an insolvent partnership, is no consideration for the promise of a creditor of the partnership to release him from his personal liability, since a partner has no right to draw money from an insolvent partnership.23
10 Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Ida. 5, 93 Pac. 789.
11 See ch. LXXX.
12 See ch. LXXX. 13 See ch. LXXX. 14 See ch. LXXX.
1 California. Sullivan v. Sullivan, 99 Cal. 187, 33 Pac. 862; In re McDougald's Estate, 146 Cal. 196, 79 Pac. 875.
Illinois. Dennis v. Piper, 21 111. App. 169; Moran v. Peace, 72 111. App. 135.
Indiana. Mader v. Cool, 14 Ind. App. 299, 56 Am. St. Rep. 304, 42 N. E. 945; Spencer v. McLean, 20 Ind. App. 626, 67 Am. St. Rep. 271, 50 N. E. 769.
Iowa. Newton v. Chicago, R. I. & P. Ry. Co., 66 la. 422.
Kentucky. Mason v. Manning, 150 Ky. 805, 43 L. R. A. (N.S.) 131, 150 S. W. 1020.
Massachusetts. Warren v. Hodge, 121 Mass. 106.
Mississippi. Keith v. Miles, 39 Miss. 442, 77 Am. Dec. 685.
Nebraska. Esterly Harvesting Machine Co. v. Pringle, 41 Neb. 265, 59 N. W. 804; Allen v. Plasmeyre (Neb.), 90 N. W. 1125.
New Jersey. Conover v. Stilwell, 34 N. J. L. 54.
New York. Crosby v. Wood, 6 N. Y. 369; Vanderbilt v. Schreyer, 91 N. Y. 392; Seybolt v. R. R., 95 N. Y. 562, 47 Am. Rep. 75; Robinson v. Jewett, 116 N. Y. 40, 22 N. E. 224; Arend v. Smith, 151 N. Y. 502, 45 N. E. 872; Olmstead v. Latimer, 158 N. Y. 313, 43 L. R. A. 685, 53 N. E. 5; Carpenter v. Taylor, 164 N. Y. 171, 58 N. E. 53.
North Dakota. Gaar v. Green, 6 N. D. 48, 68 N. W. 318.
Tennessee. Hanks v. Barron, 95 Tenn. 275, 32 S. W. 195. (Payment by the owner of amount due a contractor and contractor's payment to a subcontractor no consideration for subcontractor's agreement to hold the owner harmless against lien of material men.)
Vermont. Cobb v. Cowdery, 40 Vt.
25, 94 Am. Dec. 370; Chase v. Soule, 76 Vt. 353, 57 Atl. 754.
Virginia. Smith v. Phillips, 77 Va. 548.
West Virginia. Tyler County v. Long, 72 W. Va. 8, 77 S. E. 328.
2 Alabama. McGaleb v. Price, 12 Ala. 753.
Arkansas. Worthen v. Thompson, 54 Ark. 151, 15 S. W. 192.
California. Sullivan v. Sullivan, 99 Cal. 187, 33 Pac. 862; Ward v. Yorba, 123 Cal. 447, 56 Pac. 58 [reversing, 54 Pac. 80].
Michigan. Morgan v. Hodges, 89 Mich. 404, 15 L. R. A. 438, 50 N. W. 876.
New York. McDonald v. Neilson, 2 Cow. (N. Y.) 139, 14 Am. Dec. 431; Crosby v. Wood, 6 N. Y. 369; Tolhurst v. Powers, 133 N. Y. 460, 31 N. E. 326.
Pennsylvania. Fink v. Smith, 170 Pa. St. 124, 50 Am. St. Rep. 750, 32 Atl. 566.
3 Worthen v. Thompson, 54 Ark. 151, 15 S. W. 192. Even if the party surrendering possession does not know that the possession is clearly wrongful. Fink v. Smith, 170 Pa. St. 124, 50 Am. St. Rep. 750, 32 Atl. 566. Such surrender is no consideration for a promise to let the possessor retain part of the property. Morgan v. Hodges, 89 Mich. 404, 15 L. R. A. 438, 50 N. W. 876; or for a promise to return the property to the possessor, unless the alleged thief by whom such property is said to have been stolen is convicted of such larceny. Fink v. Smith, 170 Pa. St. 124, 50 Am. St. Rep. 750, 32 Atl. 566.
4 Martin v. Armstrong (Tex. Civ. App.), 62 S. W. 83.
5 Sullivan v. Sullivan, 09 Cal. 187, 33 Pac. 862.
6 Kortlander v. Elston, 52 Fed. 180, 2 C. C. A. 657.
7Wendover v. Baker, 121 Mo. 273, 25 S. W. 918; Erny v. Sauer, 234 Pa. St. 330, 83 Atl. 205.
8 A deed in form but a mortgage in reality was given. On payment of the mortgage debt, the making of a deed to the property by mortgagee was merely doing what he was bound to do and was no consideration for allowing him to retain rents. Chilson v. Bank, 9 N. D. 96, 81 N. W. 33; Jones v. Risley, 91 Tex. 1, 32 S. W. 1027.
9 In re McDougald's Estate, 146 Cal. 196, 79 Pac. 875.
10Tolhurst v. Powers, 133 N. Y. 460, 31 N. E. 326.
11 Smith v. Coker, 110 6a. 654, 36 S. E. 107.
12Shortle v. Ry Co., 131 Ind. 338, 30 N. E. 1084.
13 Newton v. Chicago, R. I. & P. Ry., 66 la. 422, 23 N. W. 905.
14 Kansas City, etc., Ry. v. Morley, 45 Mo. App. 304. (No consideration for a promise by the contractor to pay for supporting its tracks while building such sewer, as the right of the railroad is subordinate to the public easement.)
15Seybolt v. R. R., 95 N. Y. 562, 47 Am. Rep. 75.
16 Richmond, etc., Ry. Co. v. Walker, 92 Ga. 485, 17 S. E. 604. (No consideration for a release of damages.)
17 Robinson v. Jewett, 116 N. Y. 40, 22 N. E. 224.
18Withers v. Ewing, 40 O. S. 400.
19Orr v. Sanford, 74 Mo. App. 187.
In some cases a promise to do what the promisor is bound in law to do, seems to be regarded as a consideration. Even if a telephone company could compel a turnpike company to permit it to erect its poles along the turnpike, a contract between the telephone company and the turnpike company, granting permission to the telephone company to erect its poles at a fixed rental, has been held to be valid.24
If there is no legal obligation to do a certain act, the doing of such act is a consideration, even though there may be an apparent obligation to do it. Thus where the court had no jurisdiction, but assumed to render an order to garnishee to pay in his debt, his promise to pay such debt is a consideration.25
20 Newton v. Chicago, R. I. & P. Ry. Co., 66 la. 422.
21 United States. York Co. v. Ry., 70 U. S. (3 Wall) 107, 18 L. ed. 170.
Mississippi. Illinois Central Ry. v. Ins. Co., 79 Miss. 114, 30 So. 43.
Missouri. Kellerman v. R. R., 136 Mo. 177, 34 S. W. 41. 37 S. W. 828; Ward v. Ry., 158 Mo. 226, 58 S. W. 28; Wilson v. Ry., 66 Mo. App. 388.
New York. Nelson v. R. R., 48 N. Y. 408.
North Carolina. Gardner v. Ry., 127 N. Car. 293, 37 S. E. 328.
Texas. Missouri, etc., Ry. v. Darlington, 40 S. W. 550.
West Virginia. Berry v. Ry., 44 W. Va. 538, 67 Am. St. Rep. 781, 30 S. E. 143.
Wisconsin. Schaller v. Ry., 97 Wis. 31, 71 N. W. 1042. No separate consideration is necessary. Cau v. Ry., 194 U. S. 427, 48 L. ed. 1053; Char-nock v. Ry., 194 U. S. 432, 48 L. ed. 1057.
22 Mouton v. Ry., 128 Ala. 537, 29 So. 602; Stewart v. Ry., 21 Ind. App. 218, 52 N. E. 89; Duvenick v. Ry., 57 Mo. App. 560; Wyrick v. Ry., 74 Mo. App. 406; Texas, etc., Ry. Co. v. Klepper (Tex. Civ. App.) 24 S. W. 567. (Consideration for agreement to waive damages if suit is not brought in forty days.)
23 Miller v. Electrical Supply & Construction Co., 46 Colo. 221, 103 Pac. 290.
24 Berks & Dauphin Turnpike Co. v. Telephone Co., 240 Pa. St. 228, 87 AtL 580.
25 Taylor v. Williams, 120 Ind. 414, 22 N. E. 118.