28 HARVARD LAW REVIEW. The earliest cases involving the point are two English fiisi pniis decisions.^ In those cases seamen had refused to work as they had agreed to do, by shipping articles, unless they were promised additional wages, and such a promise having been made, action was subsequently brought for breach of it. It was held that the seamen could recover only the wages which were origi- nally agreed upon. In the first case, the decision was based on the ground that the second agreement was contrary to public policy. But in Stilk v. Myrick, Lord Ellenborough, while approv- ing the earlier decision, doubted whether public policy was the true principle on which the decision was to be supported. " There was no consideration for the ulterior pay promised to the mariners who remained with the ship. Before they sailed from London, they had undertaken to do all they could under all the emergencies of the voyage. . . . Therefore, without looking to the policy of this agreement, I think it is void for want of consideration." Since these decisions, it does not seem to have been doubted in England that neither the promise to do a thing, nor the actual doing of it, will be a good consideration if it is a thing which the party is already bound to do by contract with the other party. The early, decisions have been followed in later cases presenting the same facts.^ No other cases seem to have arisen in England, as they have in this country, where the earlier obligation grew out of a bi- lateral obligation, subsisting at the time of the second agreement to do something other than pay money. And only in such a case is it possible to reason, that the earlier obligation has been rescinded by mutual consent,^ but, from the language used by English cases and text-writers, and the decisions already referred to, it is fair to suppose that unless clear evidence of a rescission of the earlier contract was presented the subsequent agreement would be held nudum pactum.^ And the making of the subsequent agreement in order to avoid a breach of the earlier, would not be regarded as such evidence.^
- Harris v. Watson, Peake, 72 ; Stilk v. Myrick, 2 Camp. 317.
- Frazer v. Hatton, 2 C. B. N. s. 512 ; Harris v. Carter, 3 E. & B. 559.
8 A debt or other unilateral obligation cannot be extinguished by parol agreement. See infra, p. 35, note 2.
- See Bayley v. Homan, 3 Bing. N. C. 915; Jackson v. Cobbin, 8 M. &. W. 790 ;
Willis z/. Peckham, i Br. & B. 515; Crowhurst v. Laverack, 8 Ex. 208; Mallalieu v. Hodgson, 16 Q. B. 689; Leake on Contracts (3d ed.), 538, 539; Pollock on Cont. (4th ed.) 176. 6 Harris v. Carter, 3 E. & B. 559.
