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 some jurisdictions, however, it has been said that B's promise to perform his contract with X, may be a con-sideration for A's promise to B.1 It has been suggested that such promise might be a consideration, even though such performance of itself might not be, since B has assumed an obligation to A in addition to his obligation to X, although the performance of the same act will discharge both obligations. This explanation, however, assumes that B's promise to A is binding; and thus it assumes that A's promise to B is sufficient consideration for A's promise, which is, of course, the real point in issue. Any cases which are cited in support of this proposition would probably all be decided in the same way in jurisdictions in which it was held that B's promise to perform his prior contract with X was no consideration for A's promise to B in consideration thereof.
18Vanderbilt v. Schreyer, 91 N. Y. 392.
19 Ellison v. Water Co., 12 Cal. 542. 20 Prickett v. Bates, 4 Ala. 390.
21 Merrick v. Giddings, 12 D. C. (1 Mackey) 394.
22 Johnson v. Sellers, 33 Ala. 265.
23 Reynolds v. Nugent, 25 Ind. 328.
24 Wimer v. Worth Township, 104 Pa.
25 Putnam v. Woodbury, 68 Me. 58. 26 Kelso v. Fleming, 104 Ind. 180, 3
N. E. 830.
27 Alabama. Johnson v. Sellers, 33 Ala, 265.
California. Marinovich v. Kilburn, 153 Cal. 638, 96 Pac. 303.
Illinois. Havana Press Drill Co. v. Ashurst, 148 111. 115, 35 N. E. 873.
Kansas. Schuler v. Myton, 48 Kan. 282.
Maine. Putnam v. Woodbury, 68 Me. 58.
New York. Arend v. Smith, 151 N. Y. 502, 45 N. E. 872.
Tennessee. Hanks v. Barron Bros., 95 Tenn. 275.
Wisconsin. Davenport v. First Congregational Society, 33 Wis. 387.
It is generally said that the English courts hold the performance of such contract to be a consideration for a promise by a third person.2 Few of these cases cited as supporting this rule really involve this question. In the greater number of the cases in which such performance is said to be a consideration, the promisee was really incurring a detriment, and his performance of his contract to a third person was a mere incident.3 Thus in one case, A and B were bound to X for Y's debt, and A promised to B to pay to B one-half of the debt, on consideration that B would pay the entire debt to X. While no action for contribution would lie at this time, B was under no obligation to A to pay the entire debt; and B's obligation to X to pay the entire debt was no greater than A's. B, accordingly, gave up a legal right as between B and A, since B had as against A a right to await suit by X, who might possibly have collected the entire debt from A.4 In another case, A was the executor of Y, the principal debtor, and B was surety, X being the creditor. A invited B to a meal at an inn, and A then promised to pay the entire debt to X, in consideration that B would pay one-half of the cost of such meal.5 Here A and B were jointly liable to the innkeeper, unless he knew that B was A's guest; but as between A and B, A was liable for the entire debt to the innkeeper as well as the entire debt to X. B's payment of one-half the debt to the innkeeper was therefore a consideration for A's promise, if any consideration other than A's, having Y's goods as executor, was necessary. In another case, A, on learning that his nephew, B, had promised to marry X, wrote a letter in which he said that as he promised to assist B at starting, he would pay to B an annuity of one hundred and fifty pounds per annum for A's life.6 Here it might be argued that A had evidently made a prior oral promise to B, possibly before B's contract to marry X, and that A's letter was merely a written memorandum of such prior contract. The prior contract was not pleaded, however, and in defendant's fourth plea was denied to exist, "save and except," as contained in the written promise. Leaving the prior promise out of consideration, however, the fact remains that while B had a binding contract with X to marry her, neither B nor X owed any duty to A. It is true that there is nothing in the case to show that X wished to rescind or to break the contract; and, accordingly, the suggestion that the consideration is B's giving up to A his prior right to agree with X to rescind the contract to marry, introduces a fiction to explain the fact. But, on the other hand, it was not a case where B was refusing performance and X was insisting on performance, and A made such promise to B, to induce B to perform. The promise was practically, though not legally, made to both B and X, to induce them to incur the obligations and responsibilities of marriage before they otherwise, in all probability, would have done so. In this particular case, to judge from the facts as shown by the pleadings, B's income was so small that but for A's promise the marriage would have been postponed indefinitely. To argue that the change of position involves no legal detriment to both B and X, because they had already agreed to marry each other, is to close our eyes to the evident facts of human life. If such a contract has no consideration, no contract upon consideration of marriage can be made, unless it is made before the parties agree to marry each other. While in some conditions of society the contract for a settlement and the contract to intermarry may be looked upon as being regularly parts of the same transaction,7 in the United States contracts by third persons to settle property in consideration of marriage are not common, and are, as a rule, made after the parties to the prospective marriage have agreed to marry each other. Such contracts to make settlements have been assumed to be upon sufficient consideration.8 The court has, however, felt bound to invoke the theory that the promise by the father of the bride to make a marriage settlement which the prospective bridgegroom demanded, had for its consideration the inducing of both parties to waive their right to rescind, although it was not shown that the prospective bride wished to rescind and the prospective bridegroom was threatening to break the contract if a satisfactory settlement were not made.9