https://www.commonlii.org/uk/cases/EngR/1861/

SCOTSON AND OTHERS v. PEGG.

Jan. 28, 1861.-

The performance of an act which a person has agreed with another to perform, is a good consideration to support a contract with a third person if the latter derives a benefit from the performance. -Therefore where a declaration stated that, in consideration that the plaintiff would deliver to the defendant a cargo of coals on board the plaintiff's ship, the defendant promised to discharge the same at the rate of forty-nine tons a day. Held, that a plea was no answer which stated that the plaintiffs had made a previous contract with other persons for the delivery of the coals to their order in the same way, and they ordered the delivery to the defendant.

[S. C. 30 L J Ex. 225, 9 W. R. 280, 3 L. T 753.]

Declaration. For that in consideration that the plaintiffs, at the request of the defendant, would deliver to the defendant a certain cargo of coals, then on board a certain ship of the plaintiffs the defendant to take the same from and out of the said ship, the defendant promised the plaintiffs to unload and discharge the same at the rate of forty-nine tons of the said coals during each working day, after the said ship was ready to unload and discharge the same. And although the plaintiff's did after- wards deliver the said cargo to the defendant, and were always ready and willing to suffer and permit him to take the same from and out of the said ship as aforesaid, and although all things were done, and conditions precedent to be performed by the plaintiffs were performed by the plaintiffs, to entitle the plaintiffs to a performance of the [296] said promise by the defendant. Yet the defendant did not unload and dis- charge the said cargo at the rate aforesaid during each working day after the said ship was ready to unload and discharge the same, and the defendant wholly neglected and refused so to do for five days longer and more than he ought to have done according to his said promise, and the plaintiffs were put to expense in and about the main- taining and keeping the master and crew of the said ship &c

Plea. That before the making of the said promise the plaintiffs, by another con- tract made by and between the plaintiffs and certain other persons, agreed with the said certain other persons, for certain freight therefore payable by the said other persons to the plaintiffs, to carry the said coals on a certain voyage in the said ship, and to deliver the said coals to the order of the said other persons, which contract was in full force thence, until and at the time of the making of the said promise and the delivery of the said coals. And the defendant says that before the making of the said promise, and after the making the said other contract, and while the last mentioned contract was in force, he bought the coals of the said other persons, who thereupon ordered the plaintiffs to deliver the same to the defendant, under and according to the said contract with the said other persons, of which the plaintiffs, before the making of the said promise, had notice. And the defendant says that the said order was in full force until and at the time of the making of the said promise, and thence until and at the delivery of the said coals, of which the plaintiffs always had natice. And the defendant says the then future delivery to the defendant of the said coals on the terms in the declaration mentioned, which was the consideration for the said promise, was the delivery of the said coals to the order of the said other persons, which the plaintiffs had by the said contract [297] with such other persons so agreed to make as aforesaid, and which before and at the time of the making of the said promise, until and at the time of the said delivery, the plaintiffs were, by, under and according to the said contract with the said other persons, bound to make as aforesaid. And the defendant says that there never was any consideration for his said promise other than the doing of that which by the said contract with the said other persons they the plaintiffs, before and at the time of the making of the said promise, and thence until the plaintiffs did it, were bound to do.

Demurrer and joinder therein.

Dowdeswell, in support of the demurrer. The plea is bad It admits a promise by the defendant to unload the coal at the rate of forty-nine tons a day, and the delivery of the same by the plaintiff's is a sufficient consideration to support the promise. The defendant, having made an express promise, is not relieved from his obligation to perform it because the plaintiff has entered into a previous contract with another person to deliver to his order. The defence would be available under the general issue, but the plea was allowed on the authority of Shadwell v Shadwell (9 C. B (N. S) 159). This is an attempt to question the decisions on this subject, which have been uniform from the time of Jesson v Solly (Taunt. 52).

The Court then called on

C. Pollock, to support the plea There is no consideration to support the promise The plea shews that the consideration alleged in the declaration is the doing that which the plaintiffs, by their contract with other persons, were bound to do. The charter-party only specifies the time and mode in which the cargo is to be discharged, as between the charterer and shipowner [Martin, B You must establish [298] this, that if a person says to another, "The goods which I have in my ship are yours, but I will not deliver them unless you pay my lien for freight," which the latter agrees to do, the delivery of the goods is no consideration to support the promise to pay ] The cargo is the property of the defendant, and the agreement to deliver to him that which he was entitled to have was a nudum pactum. In Black Com, vol 2, p 450, it is said:"If a man buys his own goods in a fair or market, the contract of sale shall not bind him, so that he shall render the price, unless the property had been previously altered by a former sale" [Wilde, B. That is the case of a purchase of goods, the property in them being already in the purchaser, but here the plaintiff's will not deliver the cargo to the defendant, whereupon the defendant says, "If you will deliver it to me, I will discharge it in a certain manner."] The plaintiffs were under a prior legal obligation to deliver the cargo, and therefore the promise to the defendant to do the same thing was void. Where a plaintiff discharged one of two joint debtors, it was held that a promise by a third person to pay the debt, in order to obtain the discharge of the other debtor, was void for want of consideration: Herring v. Dorell (8 Dowl P. C. 604). So, if A. be illegally arrested by B. for a debt, a promise by C. to pay the debt claimed by B., in consideration of B.'s releasing A. out of custody, is void. Atkinson v. Settree (Willes, 482) [Wilde, B. In those cases there was a legal right to the performance of the very act which was bargained for: it is not so here. Martin, B. Suppose a man promised to marry on a certain day, and before that day arrived he refused, on the ground that his income was not suffi- cient, whereupon the father of the intended wife said to him. "If you will marry my daughter, I will allow you 10001. a year" Could not that contract be enforced?] There [299] would be no consideration for such a promise, the party being already under an obligation to marry. A promise by a captain to pay his sailors increased wages for performing their duty during a storm is void for want of consideration. [Martin, B. That proceeds on the ground of public policy. Wilde, B It often happens that when goods arrive in a ship, and there is a lien upon them, a merchant who wants to get possession of the goods promises to pay the lien if the master will deliver them to him A man may be bound by his contract to do a particular thing, but while it is doubtful whether or no he will do it, if a third person steps in and says, "I will pay you if you will do it," the performance is a valid consideration for the payment Martin, B. If a builder was under a contract to finish a house on a particular day, and the owner promised to pay him a sum of money if he would do it, what is to prevent the builder from recovering the money?] As the plaintiffs would be doing a wrong by not fulfilling their contract, it must be presumed that the prior legal obligation, and not the subsequent promise, was the motive for their delivery of the cargo.

MARTIN, B. I am of opinion that the plea is bad, both on principle and in law. It is bad in law because the ordinary rule is, that any act done whereby the contracting party receives a benefit is a good consideration for a promise by him Here the benefit is the delivery of the coals to the defendant It is consistent with the declara- tion that there may have been some dispute as to the defendant's night to have the coals, or it may be that the plaintiffs detained them for demuriage, in either case there would be good consideration that the plaintiffs, who were in possession of the coals, would allow the defendant to take them out of the ship. Then is it any [300] answer that the plaintiffs had entered into a prior contract with other persons to deliver the coals to their order upon the same terms, and that the defendant was a stranger to that contract? In my opinion it is not. We must deal with this case as if no prior contract had been entered into Suppose the plaintiffs had no chance of getting their money from the other persons who might perhaps have become bank- rupt. The defendant gets a benefit by the delivery of the coals to him, and it is immaterial that the plaintiffs had previously contracted with third parties to deliver to their order.

WILDE, B. I am also of opinion that the plaintiffs are entitled to judgment plaintiffs say, that in consideration that they would deliver to the defendant a cargo of coals from their ship, the defendant promised to discharge the cargo in a certain way. The defendant, in answer, says, "You made a previous contract with other persons that they should discharge the cargo in the same way, and therefore there is no consideration for my promise But why is there no consideration? It is said, because the plaintiffs, in delivering the coals are only performing that which they were already bound to do. But to say that there is no consideration is to say that it is not possible for one man to have an interest in the performance of a contract made by another. But if a person chooses to promise to pay a sum of money in order to induce another to perform that which he has already contracted with a third person to do, I confess I cannot see why such a promise should not be binding. Here the defendant, who was a stranger to the original contract, induced the plaintiffs to part with the cargo, which they might not otherwise have been willing to do, and the delivery of it to the defendant was a benefit to him I accede to the proposition that if [301] a person contracts with another to do a certain thing, he cannot make the performance of it a consideration for a new promise to the same individual. But there is no authority for the proposition that where there has been a promise to one person to do a certain thing, it is not possible to make a valid promise to another to do the same thing. Therefore, deciding this matter on principle, it is plain to my mind that the delivery of the coals to the defendant was a good consideration for his promise, although the plaintiffs had made a previous contract to deliver them to the order of other persons.

Judgment for the plaintiffs.