Story Case

Charles Abbott, a bridge builder, made a contract with Frank Bates, to build a bridge. Abbott agreed to complete the work within four months, and Bates agreed to pay him $5,000. At the end of one month, Abbott declared that he was about to discontinue the work, because he could not employ men at $4 a day, as he had planned. Bates was in haste to have the bridge completed, and, therefore, agreed in writing with Abbott to pay one-half the extra cost of the men if Abbott would continue the work. With this understanding Abbott employed ten men at $6 a day and completed the bridge on time. Thereupon, Bates refused to pay Abbott anything above the $5,000 first agreed upon, on the ground that his second promise was not binding. Abbott brought suit to recover one-half the extra cost of the men, in accordance with the second contract. Will the action be sustained?

Ruling Court Case. Lingenfelder Vs. The Wainwright Brewing Company, Volume 103 Missouri Reports, Page 578

Lingenfelder was employed by Wainwright to draw plans for and to superintend the construction of brewery buildings. He was to receive a commission of five per cent on the cost of the buildings, but not on the placing of any machinery. Wainwright awarded the contract for a refrigerator plant to be installed in one of the buildings to De La Vergne Ice Company. Now Lingenfelder was the president of, and interested in, a rival company engaged in the same line of business; angry because his company had not been given the contract for the plant, he took away his plans, recalled his superintendent, and declared that he had abandoned the project. Wainwright was in haste to complete the brewery, but was unable to secure anyone to take Lingenfelder's place without the loss of much time. Wainwright offered to allow Lingenfelder a five per cent commission on the cost of installing the refrigerator plant, if he would complete his contract. He agreed, and when the building was finished and he demanded his extra commission, it was refused by Wainwright. This suit was then brought by the executors of Lingenfelder for the extra commission.

Mr. Justice Gantt delivered the opinion of the court: "The plaintiff was not entitled to recover because there was no consideration for the promise of the defendant to allow the architect the extra commission. The original contract here was not modified in any way; Lingenfelder promised to do for the extra five per cent just what he had already bound himself to do by the original contract. He gave nothing new and promised nothing new. A promise to do what one is already bound to do is in law no consideration for the promise of the other party.

"Lingenfelder was bound by his contract to design and superintend the erection of this building. Under the new promise he was not to do anything more or different. What benefit was to accure to Wainwright ? He was to receive the same service from Lingenfelder under the new contract that Lingenfelder was bound to tender under the original contract. What loss, trouble or inconvenience could result to Lingenfelder, that he had not already assumed?

"'When a party merely does what he has already obligated himself to do, he cannot demand an additional compensation therefor, and although by taking advantage of the necessities of his adversary he obtains a promise for more, the law will regard it as nudum pactum, and will not lend its process to aid in the wrong.'"

Judgment was given for the defendant, The Wain-wright Brewing Company.

Ruling Law. Story Case Answer

A promise to do that which one is already bound to do, is not sufficient to support a counter promise. In the Story Case, Bates received nothing more in return for his promise than he was entitled to receive, and Abbott has suffered nothing, for he was already bound to build the house.

Of course, it is always possible for the parties to rescind or change their old agreement. If, in the above case, Bates had informed Abbott that he wished his bridge finished a month earlier than the contract stipulated, and was willing to pay one-half the extra cost of the men, if Abbott would double his force, and Abbott acted in reliance on this offer, obviously there is a new mutual consideration for a new agreement. As the case stands, however, Abbott did not promise to add anything new in exchange for the promise of Bates; hence, there is no consideration coming from Abbott and he cannot recover.