Gantt, P. J.
It is not only conceded but urged by counsel on- both sides, that the finding of the referee is equivalent to a special verdict, and, where there is evidence tending to establish the facts found, the court will [590]*590not disturb the referee’s finding. Wiggins Ferry Co. v. Railroad, 73 Mo. 389. Nor is it questioned that, ■while the referee’s findings are conclusive as to the facts, his conclusions as to the law may, if erroneous, be set aside and the law properly applied, by either the trial or appellate court. Gamble v. Gibson, 83 Mo. 290.
Upon the coming in of the referee’s report in this cause, the plaintiffs filed various exceptions. The circuit court overruled all those exceptions except the tenth. This exception simply raised the question of law on the facts found. Under this state of case, there was no occasion to refer the case back to the’referee, as it was as- competent for the circuit court to adopt the facts found and apply the law, as it was to send it back with the direction to allow plaintiffs credit on the disputed item involved in this tenth exception. To avoid this re-reference counsel stipulated that “the court might, upon the facts and evidence reported by the referee, pronounce the conclusion of law and enter judgment accordingly.”
The learned counsel for the respondents invite us to indulge in the presumption that the circuit court disregarded the findings of the referee and examined the evidence for himself, and, if there was any evidence to support the judgment, this court ought not to reverse. The argument is more specious than ingenuous. This court has held that in a law case the court must either accept or set aside altogether the findings of fact by the referee. This, we take it the court did in this case. He evidently accepted the facts as found, and disagreed with the referee only as to the law on the tenth exception, and we so construe the stipulation. In the light ■of the record, it will not bear any other construction. Hence we shall confine this discussion to the one issue raised by the tenth exception to the referee’s report.
The referee found that Jungenfeld, the plaintiffs’ testator, was not entitled to the commission of five per [591]*591cent, on the cost of the refrigerator plant. He found that Jungenfeld’s employment as architect was to design plans and make drawings and specifications for certain brewery buildings for the Wainwright Brewery Company and superintend their construction to completion for a commission of five per cent, on the cost of the buildings. He found further that Jungenfeld’s contract did not include the refrigerator plant, that was to be constructed in these buildings. He further found, and the evidence does not seem to admit of a doubt as to the propriety of his finding, that this refrigerator plant was ordered not only without Mr. Jungenfeld’s assistance, but against his wishes. He was in no way connected with its erection.
“Mr. Jungenfeld was president of the Empire Refrigerating Company and largely interested therein. * * The De La Yergne Ice Machine Company was a competitor in business. * * * Against Mr. Jungenfeld’s wishes Mr. Wainwright awarded the contract for the refrigerating plant to the De La Yergne Company. * * The brewery was at that time in process of erection and most of the plans were made. When Mr. Jungenfeld heard that the. contract was awarded he took his plans, called off his superintendent on the ground, and notified Mr. Wainwright that he would have nothing more to do with the brewery. The defendant was in great haste to have its new brewery completed for divei's reasons. It would be hard to find an architect in Mr. Jungenfeld’s place and the making of new plans and arrangements when another architect was found would^_involve much loss of Júme. Under ~tfiese UwxiimFimceTWUUhl ain\raghT~promised to give Jungenfeld five per cent, on the cost of the De La Yergne ice machine if he would resume work. Jungenfeld accepted and fulfilled the duties of superintending architect till the completion of the brewery.
“ As I understand the facts and as I accordingly formally find defendant promised Jungenfeld a bonus [592]*592to resume work and complete the original contract under the original terms.
“I accordingly submit that in my view defendant’s promise to pay Jungenfeld five per cent, on the cost of the refrigerating plant was without consideration, and recommend that the'claim be not allowed.”
The referee also finds ‘"that Mr. Jungenfeld never claimed that defendant had brollen the contract or intended to do so, or that any of his legal rights had been violated.”
The learned circuit judge, upon this state of facts, held that the defendant was liable on this promise of Wainwright to pay the additional five per cent, on the refrigerator plant. The point was duly saved, and from the decision this appeal is taken.
Was there any consideration for the promise of Wainwright to pay Jungenfeld five per cent, on the refrigerator plant ? If there was not, plaintiff cannot recover the $3,449.75, the amount of that commission. The report of the referee, and the evidence upon which it is based, alike show that Jungenfeld’s claim to this extra compensation is based upon Wainwright’s promise to pay him this sum to induce him, Jungenfeld, to complete his original contract under its original terms.
It is urged upon us by respondents that this was a new contract. New in what? Jungenfeld was bound by his contract to design and supervise this building. Under the new promise he was not to do anything more or anything different. What benefit was to accrue to Wainwright. He was to receive the same service from Jungenfeld under the new that Jungenfeld was bound to tender under the original contract. What loss, trouble or inconvenience could result to Jungenfeld that he had not already assumed ? No amount of metaphysical reasoning can change the plain fact that Jungenfeld took advantage of Wainwright’s necessities, and extorted the promise of five per cent, on the refrigerator plant, as the condition of his complying with his [593]*593contract already entered into. Nor liad lie even the flimsy pretext that-Wainwright had violated any of the conditions of the contract on his part.
Jungenfeld himself put it upon the simple proposition, that “if he, as an architect, put up the brewery, and another company put up the refrigerating machinery, it a 'ould be a detriment to the Empire Refrigerating Company” of which Jungenfeld was president. To permit plaintiff to recover under such circumstances, would be to offer a premium upon bad faith, and invite men to violate their most sacred contracts, that they may profit by their oivn wrong.
“That a promise to pay a man for doing that which he is already under contract to do is without consideration,” is conceded by respondents. The rule has been so long imbedded in the common law and decisions of the highest courts of the various states that nothing but the most cogent reasons ought to shake it. Harris v. Carter, 3 E. & B. 559 ; Slilk v. Myrick, 2 Camp. 317; I Chitty on Contracts [11 Amer. Ed.] 60; Bartlett v. Wyman, 14 Johns. 260 ; Reynolds v. Nugent, 25 Ind. 328; Ayres v. Railroad, 52 Iowa, 478; Festerman v. Parker, 10 Ind. 474; Eblin v. Miller, 78 Ky. 371; Sherwin & Co. v. Brigham, 39 Ohio St. 137; Overdeer v. Wiley, 30 Ala. 709 ; Jones v. Miller, 12 Mo. 408; Hick v.
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Gantt, P. J.
It is not only conceded but urged by counsel on- both sides, that the finding of the referee is equivalent to a special verdict, and, where there is evidence tending to establish the facts found, the court will [590]*590not disturb the referee’s finding. Wiggins Ferry Co. v. Railroad, 73 Mo. 389. Nor is it questioned that, ■while the referee’s findings are conclusive as to the facts, his conclusions as to the law may, if erroneous, be set aside and the law properly applied, by either the trial or appellate court. Gamble v. Gibson, 83 Mo. 290.
Upon the coming in of the referee’s report in this cause, the plaintiffs filed various exceptions. The circuit court overruled all those exceptions except the tenth. This exception simply raised the question of law on the facts found. Under this state of case, there was no occasion to refer the case back to the’referee, as it was as- competent for the circuit court to adopt the facts found and apply the law, as it was to send it back with the direction to allow plaintiffs credit on the disputed item involved in this tenth exception. To avoid this re-reference counsel stipulated that “the court might, upon the facts and evidence reported by the referee, pronounce the conclusion of law and enter judgment accordingly.”
The learned counsel for the respondents invite us to indulge in the presumption that the circuit court disregarded the findings of the referee and examined the evidence for himself, and, if there was any evidence to support the judgment, this court ought not to reverse. The argument is more specious than ingenuous. This court has held that in a law case the court must either accept or set aside altogether the findings of fact by the referee. This, we take it the court did in this case. He evidently accepted the facts as found, and disagreed with the referee only as to the law on the tenth exception, and we so construe the stipulation. In the light ■of the record, it will not bear any other construction. Hence we shall confine this discussion to the one issue raised by the tenth exception to the referee’s report.
The referee found that Jungenfeld, the plaintiffs’ testator, was not entitled to the commission of five per [591]*591cent, on the cost of the refrigerator plant. He found that Jungenfeld’s employment as architect was to design plans and make drawings and specifications for certain brewery buildings for the Wainwright Brewery Company and superintend their construction to completion for a commission of five per cent, on the cost of the buildings. He found further that Jungenfeld’s contract did not include the refrigerator plant, that was to be constructed in these buildings. He further found, and the evidence does not seem to admit of a doubt as to the propriety of his finding, that this refrigerator plant was ordered not only without Mr. Jungenfeld’s assistance, but against his wishes. He was in no way connected with its erection.
“Mr. Jungenfeld was president of the Empire Refrigerating Company and largely interested therein. * * The De La Yergne Ice Machine Company was a competitor in business. * * * Against Mr. Jungenfeld’s wishes Mr. Wainwright awarded the contract for the refrigerating plant to the De La Yergne Company. * * The brewery was at that time in process of erection and most of the plans were made. When Mr. Jungenfeld heard that the. contract was awarded he took his plans, called off his superintendent on the ground, and notified Mr. Wainwright that he would have nothing more to do with the brewery. The defendant was in great haste to have its new brewery completed for divei's reasons. It would be hard to find an architect in Mr. Jungenfeld’s place and the making of new plans and arrangements when another architect was found would^_involve much loss of Júme. Under ~tfiese UwxiimFimceTWUUhl ain\raghT~promised to give Jungenfeld five per cent, on the cost of the De La Yergne ice machine if he would resume work. Jungenfeld accepted and fulfilled the duties of superintending architect till the completion of the brewery.
“ As I understand the facts and as I accordingly formally find defendant promised Jungenfeld a bonus [592]*592to resume work and complete the original contract under the original terms.
“I accordingly submit that in my view defendant’s promise to pay Jungenfeld five per cent, on the cost of the refrigerating plant was without consideration, and recommend that the'claim be not allowed.”
The referee also finds ‘"that Mr. Jungenfeld never claimed that defendant had brollen the contract or intended to do so, or that any of his legal rights had been violated.”
The learned circuit judge, upon this state of facts, held that the defendant was liable on this promise of Wainwright to pay the additional five per cent, on the refrigerator plant. The point was duly saved, and from the decision this appeal is taken.
Was there any consideration for the promise of Wainwright to pay Jungenfeld five per cent, on the refrigerator plant ? If there was not, plaintiff cannot recover the $3,449.75, the amount of that commission. The report of the referee, and the evidence upon which it is based, alike show that Jungenfeld’s claim to this extra compensation is based upon Wainwright’s promise to pay him this sum to induce him, Jungenfeld, to complete his original contract under its original terms.
It is urged upon us by respondents that this was a new contract. New in what? Jungenfeld was bound by his contract to design and supervise this building. Under the new promise he was not to do anything more or anything different. What benefit was to accrue to Wainwright. He was to receive the same service from Jungenfeld under the new that Jungenfeld was bound to tender under the original contract. What loss, trouble or inconvenience could result to Jungenfeld that he had not already assumed ? No amount of metaphysical reasoning can change the plain fact that Jungenfeld took advantage of Wainwright’s necessities, and extorted the promise of five per cent, on the refrigerator plant, as the condition of his complying with his [593]*593contract already entered into. Nor liad lie even the flimsy pretext that-Wainwright had violated any of the conditions of the contract on his part.
Jungenfeld himself put it upon the simple proposition, that “if he, as an architect, put up the brewery, and another company put up the refrigerating machinery, it a 'ould be a detriment to the Empire Refrigerating Company” of which Jungenfeld was president. To permit plaintiff to recover under such circumstances, would be to offer a premium upon bad faith, and invite men to violate their most sacred contracts, that they may profit by their oivn wrong.
“That a promise to pay a man for doing that which he is already under contract to do is without consideration,” is conceded by respondents. The rule has been so long imbedded in the common law and decisions of the highest courts of the various states that nothing but the most cogent reasons ought to shake it. Harris v. Carter, 3 E. & B. 559 ; Slilk v. Myrick, 2 Camp. 317; I Chitty on Contracts [11 Amer. Ed.] 60; Bartlett v. Wyman, 14 Johns. 260 ; Reynolds v. Nugent, 25 Ind. 328; Ayres v. Railroad, 52 Iowa, 478; Festerman v. Parker, 10 Ind. 474; Eblin v. Miller, 78 Ky. 371; Sherwin & Co. v. Brigham, 39 Ohio St. 137; Overdeer v. Wiley, 30 Ala. 709 ; Jones v. Miller, 12 Mo. 408; Hick v. Merry, 23 Mo. 72; Laidlou v. Hatch, 75 Ill. 11 ; Wimer v. Overseers of Poor, 104 Penn. St. 317; Cobb v. Cowdery, 40 Vermont, 25; Vanderbilt v. Schreyer, 91 N. Y. 392.
But “it is carrying coals to New Castle” to add authorities on a proposition so universally accepted and so inherently just and right in itself. The learned counsel for respondents do not controvert the general proposition. Their contention is, and the circuit court agreed with them, that, when Jungenfeld declined to go further on his contract, the defendant then had the right to sue for damages, and not having elected to sue [594]*594Jungenfeld, but having acceded to his demand for the additional compensation, defendant cannot now be heard to say his promise- is without consideration. While it is true Jungenfeld became liable in damages for the obvious breach of his contract, we do not think it follows that defendant is estopped from showing its promise was made without consideration.
It is true that as eminent a jurist as Judge Cooley, in Goebel v. Linn, 47 Michigan, 489, held that an ice company which had agreed to furnish a brewery with all the ice they might need for their business from November 8, 1879, until January 1, 1881, at $1.75 per ton, and afterwards in May, 1880, declined to deliver any more ice unless the brewery would give it $3 per ton, could recover on a promissory note given for the increased price. Profound as is our respect for the distinguished judge who delivered that opinion, we are still of the opinion that his decision is not in accord with the almost universally accepted doctrine and is not convincing, and certainly so much of the opinion as holds that the payment by a debtor of a part of his debt then due would constitute a defense to a suit for the remainder is not the law of this state, nor do we .think of any other where the common law prevails.
The case of Bishop v. Busse, 69 Ill. 403, is readily distinguishable from the case at bar. The price of brick increased very considerably, and th'e owner changed the plan of the building, so as to require nearly double the number; owing to the increased price and change in the plans, the contractor notified the party for whom he was building, that he could not complete the house at the original prices, and, thereupon, a new arrangement was made, and it is expressly upheld by the court on the ground that the change in the buildings was such a modification as necessitated a new contract. Nothing we have said is intended as denying parties the right to modify their contracts, or make new [595]*595contracts, upon new or different considerations and binding themselves thereby.
What we hold is that, when a party merely does what he has already obligated himself to do, he cannot demand an additional compensation therefor, and, although by taking advantage of the necessities of his adversary, he obtains a promise for more, the law will regard it as nudum pactum, and will not lend its process to aid in the wrong.
So holding, we reverse the judgment of the circuit court of St. Louis, to the extent that it allow the plaintiffs below, respondents here, the sum of $3,449.75, the amount of commission at five per cent, on the refrigerator plant; and, at the request of both sides, we proceed to enter the judgment here, which, in our opinion, the circuit court of St. Louis should have entered, and accordingly it is adjudged that the report of the referee be in all things approved, and that defendant have and recover of plaintiffs as executors of Edmund Jungenfeld the sum of $1,492.17 so found by the referee with interest from March 9, 1887.
All the judges of this •division concur.