32 HARVARD LAW REVIEW. a very harsh decision.^ In Endriss v. Belle Isle Co.,^ where the facts were similar, the brewer, having paid for ice received, according to the second agreement, brought an action for damages for breach of the original contract, and was held entitled to submit to the jury the question whether that contract was rescinded. It is hard to reconcile this with the preceding case,^ which seems necessarily to treat the prior contract as rescinded. Otherwise, there was no value given or received for the note, and besides the circuity of action which would result from allowing a recovery in both actions should have been a sufficient reason for a different decision in an action on the second contract. If excuse is needed for saying so much, it is to be found in the fact that the cases criticised, though contrary, it is believed, to the law of England, and to general principles universally admitted, perhaps represent, on the exact point which they cover, the weight of American authority. There are, however, decisions to the contrary. In Ayres v. Chicago, Rock Island & Pac. R. R. Co.,* it was held that a promise to pay additional compensation to a railroad contractor, upon his refusal to comply with a contract to construct a railroad, was void. Decisions to the same effect have been made in a few other cases,^ and in Illinois and Michigan late decisions make it probable that the earlier cases referred to above would not be followed to their full extent.^ II. Turning now to the second class of cases of which it was pro- posed to treat, we find curiously enough that in England perform- ance or promise of performance of something which one was at the time bound to perform by contract with a third person is held a sufficient consideration, while in this country the contrary is held almost universally, though, in many jurisdictions, as just shown, a previous contract between the same parties does not ^ It is criticised in Lingenfelder v. The Wainwright Brewing Co., 103 Mo. 578, 594. ' 49 Mich. 279.
- Rogers v. Rogers, 139 Mass. 440, is a contrary decision.
- 52 Iowa, 478.
^ McCarty v. Hampton Assoc, 61 Iowa, 287 ; Lingenfelder v. The Wainwright Brewing Co., 103 Mo 578; Festerman v. Parker, 10 Ired. 474; Erb v. Brown, 69 Pa. 216. See also Proctor v. Keith, 12 B. Mon. 252 ; Eblin v. Miller's Exec, 78 Ky. 371 » Conover v. Stillwell, 34 N. J. L. 54, 57. 6 Nelson v. Pickwick Associated Co., 111. 30 App. 333 ; Golds Borough v. Gable, 140 Dl. 269; Widiman v. Brown, 83 Mich. 241.
