rPVO THEORIES OF CONSIDERATION. 529 Again, in the case above supposed, the employer might promise to pay the extra compensation, and the builder might complete the job, but without giving any new promise to do so. This arrange- ment would probably mean a substitution of a new contract for the old one. " In consideration of the builder's promise to abandon all claim against the employer on the old contract, the employer promises to abandon all claim on the old contract, and to pay the old price plus the additional amount, provided the builder com- pletes the job." This would also be a case of rescission, and the builder would be entitled to sue on the new contract on any theory of consideration.^ On the other hand, one of the parties to the original contract may have performed everything on his side, and the other party then refuse to do his part. If, under these circumstances, the one who has performed his part promises something extra for the other's performance, there can be no question of rescission. The case is the same in principle as the promise of a creditor in consid- Devoe, 37 Conn. 570; Bishop v. Busse, 69 111. 403; Cooke w. Murphy, 70 111. 96; Coy- ner v. Lynde, 10 Ind. 282; Courtenay v. Fuller, 65 Me. 156; Munroe v. Perkins, 9 Pick. 298; Holmes v. Doane,9Cush. 135; Rollins v. Marsh, 128 Mass. 116; Rogers V. Rogers, 139 Mass. 440; Thomas z/. Barnes, 156 Mass 581 ; Goebel v. Linn. 47 Mich. 489; Conkling v. Tuttle, 52 Mich. 630; Osborne v. O'Reilly, 42 N. J. Eq. 467; Latti- morez/. Harsen, 14 Johns. 440; Stewart z/. Keteltas, 36 N. Y. 388; Nesbitt z'. R. R. Co., 2 Speers, 697, 706 (semble). The plaintiff failed in Ayres v. Chicago Co., 52 Iowa, 478; McCarty v. Hampden Association, 6i Iowa, 287 ; King v. Duluth Co., 61 Minn. 482 ; Lingenfelder v. Wain- wright Co., 103 Mo. 578. But the question of rescission was not adequately considered. In King v. Duluth Co., supra, the court made a distinction not elsewhere suggested. The validity of the new agreement was made to turn upon the circumstances under which the losing party declined to go on. If he declined simply because he had made an unfortunate bargain, the new agreement was said to be inoperative for want of a consideration. But if he declined because of difficulties that could not reasonably have been foreseen, the new agreement would be a valid substitution for the old contract. The consideration is obviously the same in both cases. In truth, the court, in suggesting this distinction, abandoned their professed doctrine of consideration, and introduced the test of public policy. Furthermore, in defining this test, the court was unduly severe upon the plaintiff. Surely it cannot be against the public good to permit the parties to rescind the old contract and to make a new one for greater compensation to one of the parties, when the latter has made an unfortunate bargain which he honestly prefers to abandon, whatever be the consequences. On the other hand, it may well be maintained, on grounds of policy, that one who refuses to keep his con- tract simply in order to exploit the necessities of the other party, should not be permit- ted to enforce a new agreement for extra compensation obtained in a manner savoring so strongly of extortion. 1 Moore v. Detroit Works, 14 Mich. 266 ; Lawrence v. Davey, 28 Vt. 264. But the right of the plaintiff to recover was denied in Festerman v. Parker, 10 Ired. 474.
