Page:Harvard Law Review Volume 8.djvu/43

27 SUCCESSIVE PROMISES OF SAME PERFORMANCE. 27 SUCCESSIVE PROMISES OF THE SAME PERFORMANCE. SOME difference of opinion and judicial decision has existed in regard to the possibility of the same promise or perform- ance, serving as consideration for successive promises, and an examination of the question has the indirect value of testing the adequacy of received definitions of consideration. The cases may be divided into two classes, firsts where the successive promises are made by the same party ; second^ where they are made by different parties. I. A frequent and convenient illustration of the first class arises where a builder engages to build a house in consideration of a promise by the owner of the land to make specified payments. Subsequently, the builder, finding his contract will prove unprofit- able, informs the landowner that unless additional compensation is promised, work on the building will cease. Thereupon the land- owner says, that if the builder will build the house, or agree to do so, further payment will be made. The house is accordingly built, and the landowner then refuses to pay more than the amount originally agreed upon. The obvious objection to the second agreement, whether uni- lateral or bilateral in form, is, that as the builder was already bound to build the house, he suffers no detriment in building it or in repeating his promise to build it, and the landowner receives no benefit to which he was not previously entitled. Nevertheless, many decisions in this country have held such a second agree- ment constitutes a valid contract, and the objection just men- tioned has been met, either by the statement that the second agreement was evidence of a rescission of the earlier contract, or by the argument that the prior contract would not have been performed, and though the non-performance would have subjected the promisor to liability to pay damages, his actual performance might be a greater benefit to the other party than a right of action.