Response or Comment
At a time when the true reasonableness of the common law and its responsiveness to the actualities of life are under criticism, it is interesting to find several cases, within the past year, affirming the old rule that performance of a legal duty is not consideration for a promise. In Vance v. Ellison, (V. Va.) 85 S. E. 776, suit was brought to enjoin the enforcement of a deed of trust executed by plaintiff to defendant, to secure payment of $1000 promised for legal services. It was admitted that when the deed was executed the defendant was already bound by a written contract to perform them for $500. Upon this showing the court held the deed to be without consideration, saying, "The doing of what one is already bound to do does not constitute good consideration for a promise." The same conclusion, on very similar circumstances was reached in Muir v. Morris, (Ore.) 154 Pac. 117, (Jan., 1916) and in Village of Seneca Falls v. Botsch, 149 N. Y. Supp. 320. In Benedict v. Greer-Robbins Co., 26 Cal. App. 468, 147 Pac. 486, it was held that payment of a part of money due under a conditional sale contract, was not such consideration for an agreement to extend the contract as would deprive the vendor of his right to retake the property sold, before the expiration of the extension.
Waite, John B. (1912-1951). "Performance of Legal Obligation as a Consideration for a Promise." Mich. L. Rev. 14, no. 6 (1916): 480-4.