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528 HARVARD LAW REVIEW. by contract to the promisor should be deemed invalid. But there is a singular dearth of cases in the English courts. The only cases found by the writer are those in which actions were brought by seamen on promises of extra compensation in consideration of their doing their duty during a storm, or after the desertion of some of the crew.^ The seamen were unsuccessful in these cases, and rightly so on the ground of public policy. But in some of the cases the court gave the additional reason that the promise was without consideration. In this country there are numerous cases in which, after the making of a bilateral contract, by which one party was to perform certain work or deliver certain merchandise, and the other was to pay a certain price therefor, one of the parties finding his bargain a losing one threatened to abandon it, whereupon the other party promised him something additional to induce him to continue. If at the time of the new promise the original contract remained to some extent executory on both sides, the new arrangement might conceivably assume different forms. Suppose, for instance, a building contract under seal, and the builder to be dissatisfied and to break his contract ; the parties might mutually agree the one to go on with his work, the other to pay extra compensation. It is un- reasonable to suppose that either party understood that the builder was to continue liable to an action for his breach of the original contract, or that the builder in case of non-payment would have to resort to two actions, — one upon the old contract for the original price, and one upon the new contract for the bonus. In other words, the parties contemplated a substitution of a new contract in place of the old one. The new contract, stated in terms of con- sideration, would be as follows : " In consideration that the builder promises to complete the job and to abandon all claim against the employed on the old contract, the employer promises to pay the builder the old price plus an additional amount, and to aban- den his claim against the builder on the old contract." This would be a case of rescission, and the builder's right of recovery would be clear on either of the two theories of consideration under discus- sion in this paper.2 1 Harris v. Watson, Peake, 72 ; Stilk v. Myrick, 6 Esp. 129, 2 Camp. 317 s. c ; Fraser V. Hutton, 2 C. B. (n. s.) 912; Harris v. Carter, 3 E. & B. 559; Scotson v. Pegg, 6 H. & N. 295, per Martin, B. See also Bartlett v. Wyman, 14 Johns. 260. 3 The following cases, in which the plaintiff recovered on the new contract, appear to have been rightly decided; Stoudermeir z/. Williamson, 29 Ala. 558; Connelly v.