Sec 500

A promise by A. to do what he is already bound to do to B. is not a sufficient consideration to support a promise by B. to do something in return to A.; in other words, a promise cannot be conditioned on a promise to do a thing to which a party is already legally bound.1 Hence, a promise to pay a witness extra fees for attendance on court is invalid;2 though this would not hold in reference to promises to pay experts for special professional assistance;3 and so, generally, as we have seen of a promise to pay a debt already existing.4 Whether a promise to finish a work already undertaken is a good consideration depends upon whether the party making the promise has encountered any fresh difficulties which might give him an excuse for surrendering the work, or whether any additional burden has been cast on him. In either of these cases, the promise to finish the work is a good consideration to support a promise to give some additional advantage to the employee;5 though otherwise not.6 In other words, if there is a novation, the new promise binds; but it does not unless, in consequence of some change of relations, there is a novation.7 - It should be added, that when a legal duty is questionable, then, as a matter of compromise, an agreement to perform it, and to waive any defence that may heretofore have been made to its performance, will be held a good consideration.8 And when the debtor is able to delay fulfilling his contract, the consideration of his waiving such opportunities of procrastination and proceeding to prompt performance may sustain a promise to give him additional compensation.1 Here, again, there is a reconstruction of the contract amounting to a novation which, as such, binds the parties.2

Promise to do what a party is legally bound to not a sufficient consideration.

1 Infra, sec 720; 1 Ch. on Con. 11th Am. ed. 60; Leake, 2d ed. 621; citing Jackson v. Cobbin, 8 M. & W. 790; Bayley v. Homan, 3 Bing. N. C. 915; Dixon v. Adams, Cro. Eliz. 538; Cal-laghan v. Hallett, 1 Caines, 104; L'Amoreux v. Gould, 3 Seld. 349; Cleveland v. Lenze, 27 Oh. St. 383; Runnamaker v. Cordray, 54 111. 303. That agreements to influence public officers are void, see supra, sec 405. That when there is a fixed salary, extra pay cannot be recovered, see infra, sec 720.

2 Dodge v. Stiles, 26 Conn. 463;.

Patterson v. Donner, 48 Cal. 369; Dawkins v. Gill, 10 Ala. 206; Sweany v. Hunter, 1 Murph. 181. 3 Wh. on Ev. sec 456.

4 Supra, sec 498; infra, sec 514.

5 Munroe v. Perkins, 9 Pick. 305; Cooke v. Murphy, 70 111. 96.

6 Cole v. Shurtleff, 41 Vt. 311; Reynolds v. Nugent, 25 Ind. 328; Ayers v. R. R., 52 Iowa, 478; Anson, 76.

7 See infra, sec 852 el seq.

8 Infra, sec 533, 852.

Sec 501

A distinction has been taken by a learned English judge in this relation between a promise to reward A. for doing his duty to a third party, and a promise to reward A. for doing his duty to the promisor. - "If a man," said Wilde, B.,3 "has already contracted with another to do a certain thing, he cannot make the performance of it a consideration for a new promise to the same individual; but it is possible to make a valid promise to another to do the same thing." And in a much-discussed English case, where an uncle wrote to a nephew, who was about to be married, " I am glad to hear of your intended marriage to E. N., and as I promised to help you at starting, I am happy to tell you I will pay you one hundred and fifty pounds yearly, during my life;" - this was held a binding promise.4 But apart from the fact that the letter in this case seems to indicate a continuous promise conditioning the nephew's engagement, the ruling was weakened by the dissent of Byle, J., as against Erle, C J., and Keating, J. It is supported, indeed, by Mr. Pollock,5 but as is pointed out by Mr. Wald, the learned American editor of Mr. Pollock's work,6 by reasoning which assumes that the party thus promising to pay another to do his duty to a third party has a right in the very matter concerning which his right is questioned.7 To this it may be added, that giving to a third party the right to interfere with other parties' contracts (e. g., by enabling A., when there is a relation of debtor and creditor established between B. and C, to become B.'s creditor as to the very matter in which B. is debtor to C), is to create a double duty, against the policy of the law. There cannot be equal loyalty to two duties which would be likely to conflict.1 sec 502. We have already seen that an agreement by a private person to pay a public officer for doing his duty is invalid as contrary to the policy of the law.2 Such an agreement, also, is invalid as without consideration.3 It is otherwise, however, as to matters not in the scope of the officer's public duties. Unless it be one of the conditions of his office that his whole time should be given up to the state, he is entitled to sell to third parties such of his services as the state does not require.4 Hence a constable, or other peace officer, may be remunerated for special attentions not in the line of his employment.5 But agreement to pay for such services must be special in order to bind.6 On the same reasoning, special services rendered by Question as to promise to reward duty to others.

1 Munroe v. Perkins, 9 Pick. 298; Lattimore v. Harsen, 14 John. 330; Stewart v. Keteltas, 36 N. Y. 388; Cooke v. Murphy, 70 111. 96; cited, Wald's Pollock, 164.

2 Infra, sec 858 et seq.

3 Scotson v. Pegg, 6 H. & N. 295.

4 Shadwell v. Shadwell, 9 C. B. N. S. 159.

5 Cont. 3d ed. 195.

6 Wald's ed. 185.

7 To this effect are cited Gordan v. Gordon, 56 N. H. 170; Davenport v. First Cong. Soc, 33 Wis. 387; Johnson v. Seller, 33 Ala. 265.

Agreement to pay public officers invalid.

1 See infra, sec 506, 810.

2 Supra, sec 403.

3 Leake, 2d ed. 620, citing Bridge v. Cage, Cro. Jac. 103. To same effect, see Callaghan v. Hallett, 1 Caines, 104; Evans v. Trenton, 4 Zab. 764; Smith v. Whildin, 10 Barr, 39; Gil-more v. Lewis, 12 Ohio, 281; Burk v. Webb, 32 Mich. 173; Mitchell v. Vance, 5 Monroe, 529; Odineal v. Barry, 24 Miss. 9.

4 England v. Davidson, 11 A. & E. 856.

5 Davis v. Munson, 43 Vt. 676.

6 In a case before the supreme court of Ohio in 1882 (Cincinnati R. R. v. Lee, 13 Rep. 280), the plaintiff was prosecuting attorney of Erie county, Ohio, at the time the services were rendered, which consisted in appearing before a magistrate, at the request of the company, and prosecuting certain felonies. The plaintiff had judgment, and defendant assigned error. This was reversed in the supreme court, Okey, J., saying: "Lee having performed services as an attorney, in pursuance of the request of the railroad company, the agreement of the company to compensate him would be applied, in the absence of any other fact. But the law does not imply such promise in all cases where one performs service at the request of another. Take the familiar example of a son who continues, after arriving at age, to live with his father, and performs service at his request. The son may have expected to be paid wages, but, from the mere fact that he acted under direction of his father in the same way as during his minority, a contract to pay wages will not be implied. To constitute an agreement to pay wages in such a case it is not essential that any price should be fixed, but words must be employed showing that both parties understand that wages are to be paid. It is the duty of the prosecuting attorney to conduct the prosecution of offenders in the court of common pleas; but in Smith v. Portage County, 9 Ohio, 25, it is said that he is not bound to appear before a justice of the peace or mayor in a criminal case. The law remains the same to the present day. But in fact that officer, in many cases, appears voluntarily in an officer of a corporation, though in the line of his duty, form no consideration for a subsequeut promise by the corporation to pay for them.1.