Morrison v. Heath

11 Vt. 610

• Court: Supreme Court of Vermont
• Decided: July 15, 1839
• Status: Published

Opinion

The opinion of the court was delivered by

Collamer, J.

It is undoubtedly true, as a general rule, that the performance of that which a man is already under legal obligation to do, can never be the consideration of additional understandings, by the other party ; perhaps not even by third persons. Such however, is Wot the true character of thia transaction.

It appears that the church was to be paid for when built, and it being ascertained that it would cost more than the price agreed upon, the contract was abandoned by the plaintiff and Low, who had jointly contracted to erect it. In that state of things the plaintiff was liable only for one half the loss. The defendant then, alone, contracted with the P^a<nfiff, alone, to erect the church at the same price and promised to pay what it cost more. Now this was a new contract and upon a new consideration, and devolved the entire duty of erection upon the plaintiff alone. This new obligation or duty was a good consideration for the defendant’s promise.

Judgment affirmed.