Page:Harvard Law Review Volume 8.djvu/47

31 SUCCESSIVE PROMISES OF SAME PERFORMANCE. 3 1 the surrender which he might not otherwise obtain. But here, as in the general class of cases under consideration, it is a benefit to which he has a right, whether the right is, or is not, adequately enforceable. The rescission of the prior contract may seem a more plausible ground to rest the decisions on; and it must be admitted, at the outset, that a rescission of one contract and the substitution for it of another in.regard to the same subject-matter is not only possible, but is in fact very common. But a narrower question than that is presented, namely : Is the refusal of a contractor to perform his contract, and the subsequent promise by the other party of greater compensation than the original contract provided for, in order to induce performance, evidence sufficient to justify a court or a jury in finding that a rescission has in fact taken place? It is submitted that it is not, that no intention is shown to release the contractor from his promise, but rather something additional is promised him to induce him to perform it.^ Further, it may well be doubted whether a refusal to go on with a half-performed contract unless further compensation is given is not such compulsion as might justify a recovery of money actually paid,^ and a fortiori invalidate a promise secured by such means. Take, for instance, the case of Goebel v. Linn.^ There, the defendants, brewers, had made a contract for ice for a year, at two dollars a ton. In the spring, the ice company notified the defendants that they should no longer deliver ice at the contract price. One of the defendants testi- fied without contradiction that no ice could be procured of other parties at the time, that shortly before the company's refusal ice was obtainable, and that this was called to the attention of the manager of the company, but that he said the company would fulfil its contract. Failure to obtain ice would have involved a direct loss of stock on hand valued at 1^15,000, and an indirect loss of business. Under these circumstances the defendant agreed to pay three dollars and a half a ton, and gave notes for ice received at that rate, on one of which the action was based. The defendant was held liable. Cooley, J., who delivered the opinion of the court, seems to rest the decision on the fact that it was an advantage to the defendants to make a new arrangement rather than sue for damages, and the facts he said did not show duress. This seems 1 See Harris v. Carter, 3 E. & B. 559. ' 47 Mich. 489.
 * See Keener on Quasi Contracts, chap. xi.