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.
In a number of jurisdictions, a compromise view has been suggested; and it has been said that while ordinarily performance of an existing contract between the parties to the new contract is no consideration for the new contract, yet, if such performance is refused by reason of difficulties, which were not anticipated by the parties when the contract was made, such performance, in view of such difficulties, is sufficient consideration.1
19Scanlon v. Northwood, 147 Mich. 139, 110 N. W. 493.
20 Rollins v. Marsh, 128 Mass. 116. See on this question Munroe v. Perkins, 26 Mass. (9 Pick) 298, 20 Am. Dec. 475; Holmes v. Doan, 63 Mass. (9 Cush) 135; Peck v. Requa, 79 Mass. (13 Gray) 407; Rogers v. Rogers, 139 Mass. 440, 1 N. E. 122; Tobin v. Kells, 207 Mass. 304, 93 N. E. 596.
21 Tobin v. Hells, 207 Mass. 304, 93 N. E. 596.
22 Parrot v. Mexican central Ry. Co., 207 Mass. 184, 34 L. R. A. (N.S.) 261, 93 N. E. 590.
23 See note 20 in this section.
24 Parrot v. Mexican Central Ry. Co., 207 Mass. 184, 34 L. R. A. (N.S.) 261, 93 N. E. 590.
1 Kentucky. John King Co. v. Louisville & N. R. Co., 131 Ky. 46, 114 S. W. 308 [rehearing denied, 116 S. W. 1201].
Maryland. Linz v. Schuck, 106 Md. 220, 124 Am. St. Rep. 481, 11 L. R. A. (N.S.) 789, 67 Atl. 286.
Michigan. Blodgett v. Foster, 120 Mich. 392, 79 N. W. 625. (Where the lumber proved of the best and poorest grades, the medium grades not being present.)
If unforeseen difficulties render the performance of a contract more expensive and more burdensome than was contemplated originally, and A refuses performance, B's promise of additional compensation to A, to induce A to perform the original contract, is said to be supported by sufficient consideration.2 Whether this is really the law in these jurisdictions, may be regarded as doubtful. The unforeseen difficulties of which the court is speaking, are not such impossibilities as would discharge the prior contract; and if they were, the performance in a modified form would undoubtedly be a consideration for a new promise.3 In some of the cases, the remark is purely an obiter, since the court finally held that the difficulty of performance is one which he should have foreseen.4 In some of the cases which adopt this view, an additional con-sideration might be found if the court had thought it necessary. If the difficulty is not anticipated by A, because of B's misrepresentation, even if innocent, A's waiver of such ground for rescinding the contract, and his willingness to perform, are sufficient considerations for B's promise to pay extra compensation.5 In many jurisdictions, such misrepresentation would give the adversary party the right to avoid the contract; and where this is the case, his waiver of his right to avoid such contract is a consideration for a new promise. Where A induced B to enter into a contract for excavating a cellar, by misrepresenting the character of the soil to be excavated, A's promise to pay an additional compensation to B, in order to induce B to continue performance, was held to be supported by sufficient consideration.6 In other cases, the original
Minnesota. Michaud v. McGregor, 61 Minn. 198, 03 N. W. 479; King v. Du-luth, Missabe & Northern Ry. Co., 61 Minn. 482, 63 N. W. 1105.
New York. Meech v. Buffalo, 29 N. Y. 198.
2 Linz v. Schuck, 106 Md. 220, 124 Am. St. Rep. 481, 11 L. R. A. (N.S.) 789, 67 Atl. 286. (Where the contractor who had agreed to dig a cellar assumed that the ground was of the same character as the surface, whereas it was soft mud underneath, requiring the contractor to drive piles and use concrete to get a foundation.)
3 For impossibility of performance as a discharge, see ch. LXXVIII.
4 King v. Duluth, Missabe & Northern Ry., 61 Minn. 482, 63 N. W. 1105. (Where the difficulty in clearing land arose from the ground's being frozen, which might have been expected in Minnesota in winter.)
5 Linz v. Schuck, 106 Md. 220, 124 Am. St. Rep. 481, 11 L. R. A. (N.S.) 789, 67 Atl. 286; Osborne v. O'Reilly, 42 N. J. Eq. 467, 9 Atl. 209. (Where A was to excavate for B, and B misstated the character of the underlying rock.)
6 Linz v. Schuck, 106 Md. 220, 124 Am. St. Rep. 481, 11 L. R. A. (N.S.) 789, 67 Atl. 286. (The unforeseen difficulty was emphasized by the court as the real basis of its decision, rather than the innocent misrepresentation.) contract was entered into under a mutual mistake of fact as to the character of the work to be done, and performance is a consideration.7 In some jurisdictions, performance of a contract entered into under mistake is a consideration,8 even though such mistake would not ordinarily render such contract invalid.9 Where the difficulty consisted in the fact that the city had placed large rocks on B's land, which had subsequently been covered with earth, so that A could not drive piles to make a foundation for B's building under his contract with B, and A claimed in good faith the right to refuse to perform, it was held that A's agreeing to perform and to keep strict account of the cost of removing the rock, so that B could use such account as evidence against the city, was a sufficient consideration for B's promise to pay additional compensation.10 In other cases, however, no technical mistake appears; and while performance proved more expensive to one party than he had anticipated, no ground for avoiding the contract was shown, unless the courts are ready to adopt the general rule that either party to a contract may avoid liability if he finds that performance will not be profitable.11
In other jurisdictions, however, performance of a contract already existing between the parties, is not a consideration, even though unforeseen difficulties have arisen, which make performance more expensive or difficult than was contemplated by the parties, as long as the contract is not rendered impossible of performance.12 If B agrees to construct a cellar wall for A in a workmanlike manner, and under a proper construction of such contract B is to take the risk as to the character of the Soil, A's promise to pay B for a special foundation which B is obliged to put in, in order to perform his contract, is without consideration.13