Page:Harvard Law Review Volume 12.djvu/550

530 530 HAR VARD LA W RE VIEW. eration of payment of the debt due to him. Only three reported cases presenting such a state of facts have been found, Peck v. Requa,^ Gaar v. Green,^ and Schneider v. Heinsheimer.^ In the first of these cases the plaintiff refused to fulfil his contract with the de- fendant to resign a certain office on request, and the defendant, to induce him to keep his promise, gave him his promissory note. It was urged, but unsuccessfully, that there was no consideration for the note. In the second case, the buyer of a machine, for which, if kept more than six days, he was to give a note and mortgage, declined, after the six days, to keep his promise. The seller, in order to obtain the note and mortgage, then warranted the quality of the machine. The court decided that the warranty was not binding. The agreement was adjudged invalid in the third case also. To the writer the decision in Peck v. Requa seems sound, but the language of the court is certainly surprising in a jurisdiction in which the doctrine of Foakes v. Beer is maintained : " Previously he had only the plaintiff's agreement to resign. By the new con- tract he obtained from the plaintiff his actual resignation, and in consideration thereof he gave the note in suit. By the surrender of an office which he had a right* to retain, the plaintiff suffered a detriment, and the defendant thereby gained an advantage which furnished a valid consideration for the note." It is evident from the paucity of such cases that the question, whether the perform- ance of a pre-existing contractual duty to the promisor will support a promise, seldom arises, except in the case of a promise in con^ sideration of the payment of part or the whole of a debt. The examination of our three classes of cases, of which Callisher V. Bischoffsheim, Shadwell v. Shadwell, and Foakes v. Beer are the conspicuous illustrations, makes it clear that the authorities cannot be reconciled with any theory of consideration. We must either adopt the view that consideration is an act or forbearance not already due from the promisee, and treat the first two classes of cases as exceptions, indefensible on principle, but established as law in England, and either already representing, or likely to repre- sent, the predominant judicial opinion in this country, or else we must adopt the other view, that consideration is any act or forbear- ance by the promisee, and regard the third class of cases, of which 1 13 Gray, 407. » 6 N. Dak. 48. * 55 N. Y. Sup. 630.
 * This must mean simply that he could not be ejected from the office.