Page:Harvard Law Review Volume 8.djvu/49

33 SC/CCESSIVE PROMISES OF SAME PERFORMANCE. 33 invalidate the second agreement. The well-known cases of Shad- , well V. Shadwell,^ and Scotson v. Pegg,^ establish the English law.* In both cases the second contract was unilateral, actual performance of the earlier obligation being the sole consideration of the promise sued on. The cases seem to be rested on the ground that the performance was a benefit to the defendant, and it is on this ground alone that they can be rested. This is the only class of cases where it is possible for the promisor to receive a benefit to which he was not previously entitled, moving from the pVomisee, and yet the promisee suffer no detriment. The promisor has certainly received something to which he was not entitled, but the promisee has done nothing which he was bound not to do. If the ordinarily received definition of consideration is accurate — that it is some detriment to the plaintiff or some benefit to the defendant moving from the plaintiff — these decisions are sound. The definition, however, it need hardly be said, originally had no reference to this class of cases. It is a statement of the past history of consideration, rather than of the present doctrine. No doubt, during its development consideration meant something more or different than something given by the promisee in exchange for the promise, but that is the end to which it gradually tended, and which it may now be held to have reached.* This definition makes what the promisee gives — that is, the detriment^ suffered by him — the universal test of the sufficiency of consideration, and by this test, as the promisee has given nothing which he was not already bound to give, the promise is not binding. If it be argued that judges have said that consideration may be either a benefit or a detriment so many times that it is now law, the answer is that they have also said a great many times that doing what one is bound to do is not a good consideration, and both these propositions cannot be true. The American cases hereafter cited, which not only lay 1 30 L. J. C. P. 145. Cited with approval in Pegge v. Lampeter Union, L. R. 7 C. P. 366, 371. 2 6 H. & N. 295. ' Jones V. Waite, 5 Bing. N. C. 341, a decisionof the Exchequer Chamber (affirmed in the House of Lords, 9 CI. & F. loi), seems not to have been cited or considered in Shadwell v. Shadwell and Scotson v. Pegg. Although that decision turned on a differ- ent point, the language and reasoning of several of the judges is clear authority that the second agreement is invalid. 6 Detriment is used in a broad sense. It is intended to include doing or refraining from doing anything whatever, when the promisee had the right to adopt a contrary course.
 * Langdell, Summary, § 64; Pollock on Contracts, chap. iv.