Page:Harvard Law Review Volume 8.djvu/45

29 SUCCESSIVE PROMISES OF SAME PERFORMANCE. 29 A few years after the decision of Stilk v. Myrick, a similar case arose in the highest court of New York,^ and the court, after stat- ing that the enforcement of the agreement to pay higher wages was contrary to public policy, stated, as another ground of deci- sion : " The promise to give higher wages is void for the want of consideration. The seamen had no right to abandon the ship at Beaufort, and a promise to pay them an extra price for abstain- ing from doing an illegal act was a nudum pactum ^ Oddly enough, in the same volume of reports is contained the case which has served in large part as the foundation for the doc- trine that a second agreement, made after refusal to perform a prior one, is binding.^ In Lattimore v. Harsen, the plaintiffs and defendant had entered into a written contract by which the plain- tiffs agreed, under a penalty of $250, to open a cartway for $900. After some part of the work was done, the plaintiffs became dis- satisfied with their contract and determined to abandon it. The defendant then agreed that if they would go on and complete the work, he would pay them by the day without reference to the written contract. The court allowed the plaintiffs to recover under the second agreement, and said, ** By the former contract, the plaintiffs subjected themselves to a certain penalty for the non- fulfilment, and if they chose to incur this penalty, they had a right to do so, and notice of such intention was given to the de- fendant, upon which he entered into the new arrangement. Here was a sufficient consideration for this promise." Bartlett v. Wyman was not cited. In Massachusetts, a few years later, a similar question arose in regard to a building contract, and in that case also the plaintiff was allowed to recover;^ the court saying that " the first contract was waived." These cases have since been followed, not only in New York* and Massachusetts,^ but in several other States.* Sometimes, as in Bishop v. Busse,'' the decision of the court is rested on the assertion that the promisor 1 Bartlett v. Wyman, 14 Johns. 260. Rogers, 139 Mass. 440; Thomas v. Barnes, 156 Mass. 581, 584. ' Stoudenmeier v. Williamson, 29 Ala. 558 ; Bishop v. Busse, 69 111. 403 ; Cooke v. Murphy, 70 111. 96; Coyner v. Lynde, 10 Ind 282; Moore v. Detroit Locomotive Works, 14 Mich. 266; Goebel v. Linn, 47 Mich. 489; Conkling v. Tuttle, 52 Mich. 130; Osborne v. O'Reilly, 42 N. J. Eq. 467 ; Lawrence v. Davey, 28 Vt. 264. » 69 111. 403.
 * Lattimore v. Harsen, 14 Johns. 330.
 * Munroe v. Perkins, 9 Pick. 298.
 * Stewart v. Keteltas, 36 N. Y. 388.
 * Holmes v. Doane, 9 Cush. 135; Rollins v. Marsh, 128 Mass. 116; Rogers v,