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.
Certain duties are imposed by law upon parties who occupy special relationships towards each other, such as husband and wife, or parent and child, and the performance of such duties is not a consideration for a promise by the adversary party to induce such performance.1 A promise by a husband to care for and support his invalid wife, though made before marriage, is not a consideration.2 A promise by a married woman to her husband to do something which is her legal duty, arising from their matrimonial relationship,3 such as a promise by her to do housework for him,4 or acting as nurse for him when he was ill;5 or a promise by a wife to a husband to live harmoniously with him and to manage the house;6 or a promise by her to resume marital relations after an estrangement due to her,7 is not a consideration. If the services are such as she is not bound, in law to render by reason of her matrimonial relationship,8 such as services as a cook in her husband's restaurant,9 or a private detective in his detective agency,10 Or a clerk in his store,11 and he is not entitled by law to the result of her earnings, such services amount to a consideration.12 A promise by children to act in a dutiful manner towards their parents,13 or performance of services for a parent by a minor child,14 or a promise by a minor step-daughter to her step-father, who stands to her in loco parentis, to travel with him and care for him,15 do not, in any of these cases, amount to a consideration. After a child has begun proceedings to have the mother declared incompetent, and a guardian appointed for her, the dismissing of such proceedings by such child is no consideration for a promise made by the mother.16
11McCook County v. Burstad, 30 S. D. 266, 138 N. W. 303.
12 See Sec. 643.
13 See Sec. 896 et seq.
1 Baumann v. Kusian, 164 Cal. 582, 129 Pac. 986; Foxworthy v. Adams, 136 Ky. 403, 27 L. R. A. (N.S.) 308, Ann. Cas. 1912A, 327, 124 S. W. 381; Ryan v. Dockery, 134 Wis. 431, 114 N. W. 820 [sub nomine, In re Ryan's Estate, 114 N. W. 820].
2 Ryan v. Dockery, 134 Wis. 431, 114 N. W. 820 [sub nomine, In re Ryan's Estate, 114 N. W. 820].
3 Lee v. Savannah Guano Co., 99 Ga. 572, 59 Am. St. Rep. 243, 27 S. E. 159; Miller v. Miller, 78 la. 177, 16 Am. St Rep. 431, 35 N. W. 464, 42 N. W. 641; Kesler's Estate, 143 Pa. St. 386, 24 Am. St. Rep. 557, 13 L. R. A. 581, 22 Atl. 892.
4 Lee v. Savannah Guano Co., 99 Ga. 572, 59 Am. St. Rep. 243, 27 S. E. 159.
5 Foxworthy v. Adams, 136 Ky. 403, 27 L. R. A. (N.S.) 308, Ann. Cas. 1912A, 327, 124 S. W. 381.
Sec. 588, Contracts between parties primarily and secondarily liable for legal duty. If B owes a legal duty to the state to perform certain acts, but as between A and B, A is liable for the performance of such acts, a contract between A and B, whereby A makes a promise to B in consideration of B's performing such act, is supported by sufficient consideration.1 If the mother of children is bound as against the state to support them, but as between the father and the mother of such children, the father is bound to support them, the act of the mother in supporting them is a consideration for the father's promise to pay to her a specific amount.2 If a steam railway is bound as against the state, to keep its crossing safe, but as against an interurban railway which crosses the steam railway, there is a duty to pay any increased expense to which the steam railway may be put by reason of such crossing, a consideration exists for the promise of the interurban railway to pay part of the cost of maintaining a flagman.3
6 Miller v. Miller, 78 la. 177, 16 Am. St. Rep. 431, 35 N. W. 464, 42 N. W. 641.
7Kesler's Estate, 143 Pa. St. 386, 24 Am. St. Rep. 567, 13 L. R. A. 581, 22 Atl. 892.
8 Moore v. Crandall, 205 Fed. 689, 124 C. C. A. 11; In re Cormick's Estate, 100 Neb. 669, L. R. A. 1917D, 265, 160 N. W. 989; Nuding v. Urich, 169 Pa. St. 289, 32 Atl. 409.
9 Nuding v. Urich, 169 Pa. St. 289, 32 Atl. 409.
10In re Cormick's Estate, 100 Neb. 669, L. R. A. 1917D, 266, 160 N. W. 989.
11 Moore v. Crandall, 205 Fed. 689,124 C. C. A. 11.
12 Whether husband and wife may make contracts with each other is discussed elsewhere. See ch. LII.
13Bauman v. Kusian, 164 Cal. 582, 120 Pac. 986.
14 In re Riff, 205 Fed. 406; Stovall v. Johnson, 17 Ala. 14; Tuite v. Tuite, 72 N. J. Eq. 740, 66 Atl. 1090.
16 Simmons v. Kelsey, 76 Neb. 124, 107 N. W. 122.
11llinois Central R. Co. v. Waterloo, C. F. & N. Ry. Co., - la. - , 164 N. W. 208 [opinion modified on petition for rehearing, Illinois Cent. R. Co. v Waterloo, C. F. & N. Ry. Co., - la. - , 165 N. W. 993]; Dallavo v. Dallavo, 189 Mich. 350, 155 N. W. 538.
If B is under a legal duty to X to perform certain acts, if A requires B so to do, and X does not require B to perform such acts, B's performance thereof may be a consideration for a contract between A and B.4 If a contract between a municipal corporation and a construction company provides for the construction of a sewer, and requires the construction company to support the railroad tracks and other structures under which such sewer is laid, the liability thus assumed by the construction company is consideration for its contract with the railway company, by which the railway company undertakes to support its own tracks, and the construction company agrees to reimburse it therefor, even if the municipal corporation might have required the railway company to do such work without compensation in the first instance.5 If A has entered into a contract to support X for life and to pay X's funeral expenses, and a public corporation, B, is bound to support X in case X should become a pauper, it has been held that B's promise to support X is no consideration for A's bond to B, conditioned on A's support of X for life and the payment of X's funeral expenses.6