
    M. G. BROWN v. L. L. OWENS.
    (Filed 23 February, 1921.)
    Contracts — Consideration—Evidence—Questions' for Jury — Trials.
    In an action by a contractor to recover of tbe owner an additional amount to tbat specified in tbe contract to erect a bouse, evidence tbat tbe owner required tbe contractor to employ a certain class of labor, tbat increased tbe cost sixteen hundred dollars over tbe original estimate, of wbicb tbe contractor agreed to lose fóur hundred dollars and tbe owner twelve hundred dollars, is sufficient as a legal consideration for the promise of the owner to pay the twelve hundred; and in tbis case it is for the jury to decide tbe questions raised, whether tbe new contract was to take effect only when reduced to writing and signed by tbe parties, or whether the alleged promise was made before or after tbe making of tbe original contract, or required a contractor’s bond as a condition precedent to its taking effect.
    Appeal, from Galvert, J., at Spring Term, 1921, of ChowaN.
    
      Vann & Holland and Bhringhaus & Small for plaintiff.
    
    
      W. S. Privelt, Van B. Martin, and Meehins & McMullan for de-fendctnl.
    
   "WalKER, J.

Action for tbe balance alleged to be due tbe plaintiff upon tbe construction of tbe defendant’s residence, -near Plymouth, N. 0. There was a nonsuit, and plaintiff appealed. Tbe plaintiff bad proceeded with the work until bis funds were exhausted, when be informed the defendant tbat be would be unable to complete it unless tbe latter would pay him tbe additional sum of twelve hundred dollars, which defendant agreed to do.

There is no evidence tbat plaintiff was acting in bad faith and attempting, by a species of duress, to extort money from the defendant, but there is, on tbe contrary, testimony tending to show tbat be was acting honestly and in good faith, bis excuse for not going on with tbe work being tbat he was out of money, and tbat be would be required to spend more than tbe original amount contemplated, because tbe defendant bad demanded that be do not employ any laborers from Plymouth, wbieb increased tbe cost to $1,600 over tbe first estimate. Plaintiff agreed to lose $400 of tbis amount if defendant would pay bim tbe balance, or twelve hundred dollars. There also was testimony to tbe effect that under tbe new agreement, if it may be so called, there were changes in tbe contract imposing certain duties and restrictions upon E. F. Muth, assignor of tbe plaintiff, for tbe benefit of tbe defendant. It is contended by tbe latter that tbe promise to pay tbe additional sum of twelve hundred dollars was without any consideration, and therefore not binding on bim, and be therefore refuses to comply with it, as be has a legal right to do. If we, for tbe present, disregard these considerations, and tbe other as to tbe employment of costlier labor, at tbe request of tbe defendant, and view tbe case as one simply of a promise to pay tbe additional money provided Muth would go on with the work and complete the job, we find tbe authorities as to tbe validity and binding force of tbe promise somewhat at variance. Some cases bold that if one party to a contract refuses to perform bis part of it unless promised some further pay or benefit than tbe contract provides, and such promise is made by tbe other party, it is supported by a valid consideration, for tbe making of tbe new promise shows a rescission of tbe original contract and tbe substitution of another. In other words, that the party, by refusing to perform bis part of tbe contract, thereby subjects himself to an action for damages, and the opposite party has bis election to bring an action for tbe recovery of such damages or to accede to tbe demands of bis adversary and make tbe promise; and if be does so it is a relinquishment of tbe original contract and tbe substitution of a new one, Munroe v. Perkins, 9 Pick., 305; Bryant v. Lord, 19 Minn., 396 (Gil., 342); Moore v. Locomotive Works, 14 Mich., 266; Goebel v. Linn, 47 Mich., 489; 11 N. W., 284; Rogers v. Rogers, 139 Mass., 440; 1 N. E., 122; King v. Duluth, Etc., Rwy. Co., 61 Minn., 482 (63 N. W. (Minn.), 1105); while others are to tbe effect that there is no consideration to support such a promise, the promisee having done no more than, in law, be was under an existing duty or obligation.to do, and, therefore, having given nothing in return for what tbe other party bad promised to pay, tbe promise is nudum pactum. Tbis contention' may be thus differently stated: A promise to do what, tbe promisor is already bound to do cannot be a consideration, for if a person gets nothing in return for bis promise but that to wbieb be is already legally entitled, tbe consideration is unreal. Therefore, as a general rule, tbe performance of, or promise to perform, an existing legal obligation is not a valid consideration. Tbe legal obligation may arise from tbe law independent of Contract, or it may arise from a subsisting contract. It is further said by those who adhere to tbis view that wbat unforeseen difficulties and burdens will make a party’s refusal to go forward with. Ms contract equitable, so as to take the case out of the general rule and bring it within the exception, must depend upon the facts of each particular case. They must be substantial, unforeseen, and not within the contemplation of the parties when the contract was made. They need not be such as would legally justify the party in his refusal to perform his contract, unless promised ettra pay, or to justify a court of equity in relieving him from the contract; for 'they are sufficient if they are of such a character as to render the party’s demand for extra pay manifestly fair, so as to rebut all inference that he is seeking to be relieved from an unsatisfactory contract, or to take advantage of the necessities of the opposite party to coerce from him a promise for further compensation. Inadequacy of the contract price, which is the result of an error of judgment, and not of some excusable mistake of fact, is not sufficient. King v. Duluth, Etc., Rwy. Co., supra. The entire question, with a full statement of the different views advanced by the courts, will be found in 9 Cyc., pp. 341-353; and at p. 351 it is said that where one of the parties to a valid contract refuses to perform the same, and the other promises some additional consideration to induce him to do so, there is no enforceable promise, but some of the courts have held that a party to a contract has the right to elect whether he will perform the contract or abandon it and pay damages, which would discharge it (a breach and payment of damages being one method of doing so), and that his giving up of this right of election, therefore, furnishes a consideration for the new promise. The cases cited to support this proposition come from courts of the highest authority, and are collected in note 63 to the text. See, also, 13 Corpus Juris, secs. 210-216, and notes. There is a case substantially like this one, where the Court held that not only the doing of the labor and furnishing of the material, under the new arrangement, were of benefit to the owner of the building, who promised to pay the additional amount for the completion of the same, and therefore a- sufficient consideration for the promise, but that a mistake of $500 which the contractors had made against themselves in their estimate of the cost of building the house also was such a consideration. Cooke v. Murphy, 70 Ill., 96.

But we need not determine at this time what the true rule is, for the decision of the question, even if the consideration is not otherwise sufficient in law, for there is evidence in this case, we think, of changes by the parties in the contract, which were sufficiently beneficial to the defendant, and detrimental to E. E. Muth, the contractor, to be a legal consideration for the promise to pay him the twelve hundred dollars. It is not conclusively shown, if it is shown at all, that the parties agreed that the new contract should not take effect and be in force until it was reduced to writing and signed by tbem. Tbat is for tbe jury to decide, if tbe question is hereafter raised. In 9 Cyc., at p. 282, tbe matter is considered.

It does not appear clearly, as contended by tbe defendant, tbat tbe conversation as to tbe character of laborers to be employed occurred before or after tbe contract was originally made, and this requires tbe determination of a jury, nor does it appear tbat tbe giving of tbe bond, offered in evidence by plaintiff, a copy of which is annexed to tbe case, was a condition precedent to tbe performance of tbe defendant’s promise to pay tbe twelve hundred dollars, but tbe contrary appears from Mutb’s testimony.

We need not consider tbe points arising upon tbe testimony as to tbe additional number of bricks required to build tbe pillars of tbe foundation, because of tbe peculiar lay of tbe ground at tbe site on bis premises selected by tbe defendant for bis residence. Tbe pillars were to be four feet high, and it was found tbat they would have to be two and one-half feet higher to conform to tbe irregular surface of tbe lot. This matter need not be considered, nor tbat concerning tbe lights, because if plaintiff is entitled to recover anything, it was error to nonsuit him, and there is some evidence in tbe case which tends to establish bis contention, as we have stated.

We have not discussed tbe facts or considered tbe merits of tbe case further than it was necessary to do so for obvious reasons. When all of tbe facts are disclosed, tbe case may present a very different aspect, if it comes back to us.

Tbe ease will be remanded, with directions to set aside tbe nonsuit and try tbe case before another jury.

New trial.  