Watkins & Son, Inc. v. Carrig
| Decision Date | 15 July 1941 |
| Citation | 21 A.2d 591 |
| Parties | WATKINS & SON, Inc. v. CARRIG. |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Strafford County; Burque, Judge.
Action of assumpsit by Robert G. Watkins & Son, Inc., against James A. Carrig for work done. To acceptance of a referee's report of a verdict for plaintiff and an order of judgment thereon, defendant brings exceptions.
Exceptions overruled.
Assumpsit, for work done. By a written contract between the parties the plaintiff agreed to excavate a cellar for the defendant for a stated price. Soon after the work was commenced solid rock was encountered. The plaintiff's manager notified the defendant, a meeting between them was held, and it was orally agreed that the plaintiff should remove the rock at a stipulated unit price about nine times greater than the unit price for excavating upon which the gross amount to be paid according to the written contract was calculated. The rock proved to constitute about two-thirds of the space to be excavated.
A referee found that the oral agreement "superseded" the written contract, and reported a verdict for the plaintiff based on the finding. To the acceptance of the report and an order of judgment thereon the defendant excepted. Further facts appear in the opinion. Transferred by Burque, C. J.
Hughes & Burns, of Dover (Walter A. Calderwood, Jr., of Dover, orally), for plaintiff.
Snow & Peyser, of Rochester (Frank W. Peyser, of Rochester, orally), for defendant.
When the written contract was entered into, no understanding existed between the parties that no rock would be found in the excavating. The plaintiff's manager made no inquiry or investigation to find out the character of the ground below the surface, no claim is made that the defendant misled him, and the contract contains no reservations for unexpected conditions. It provides that "all material" shall be removed from the site, and its term that the plaintiff is "to excavate" is unqualified. In this situation a defence of mutual mistake is not available. A space of ground to be excavated, whatever its character, was the subject matter of the contract, and the offer of price on that basis was accepted. Leavitt v. Dover, 67 N.H. 94, 32 A. 156, 68 Am.St.Rep. 640. If the plaintiff was unwise in taking chances, it is not relieved, on the ground of mistake, from the burden incurred in being faced with them. The case differs from that of King Co. v. Aldrich, 81 N.H. 42, 121 A. 434, in which the parties did not contract for the property delivered in purported performance of the contract actually made.
The referee's finding that the written contract was "superseded" by an oral contract when the rock was discovered is construed to mean that the parties agreed to rescind the written contract as though it had not been made and entered into an oral one as though it were the sole and original one. The defendant either thought that the contract did not require the excavation of rock on the basis of the contract price or was willing to forgo his rights under the contract in respect to rock. It was important to him that the work should not be delayed, and other reasons may have contributed to induce him to the concession he made. In any event, he consented to a special price for excavating rock, whatever his rights under the contract. The plaintiff on the strength of the promise proceeded with the work.
But the defendant contends that the facts do not support a claim of two independent and separate transactions, one in rescission of the written contract as though it were nugatory, and one in full substitution of it. All that is shown, as he urges, is one transaction by which he was to pay more for the excavating than the written contract provided, with that contract otherwise to remain in force. And upon the basis of this position he relies upon the principle of contract law that his promise to pay more was without consideration, as being a promise to pay the plaintiff for performance of its obligation already in force and outstanding. Whether the contract was rescinded with a new one to take its place or whether it remained in force with a modification of its terms, is not important. In the view of a modification, the claim of a promise unsupported by consideration is as tenable as under the view of a rescission. A modification involves a partial rescission.
In the situation presented the plaintiff entered into a contractual obligation. Facts subsequently learned showed the obligation to be burdensome and the contract improvident. On insistent request by the plaintiff, the defendant granted relief from the burden by a promise to pay a special price which overcame the burden. The promise was not an assumption of the burden; the special price was fair and the defendant received reasonable value for it.
The issue whether the grant of relief constituted a valid contract is one of difficulty. The basic rule that a promise without consideration for it is invalid leads to its logical application that a promise to pay for what the promisor already has a right to receive from the promisee is invalid. The promisee's performance of an existing duty is no detriment to him, and hence nothing is given by him beyond what is already due the promisor. But the claim is here made that the original contract was rescinded, either in full or in respect to some of its terms, by mutual consent, and since any rescission mutually agreed upon is in itself a contract, the claim of a promise to pay for performance of a subsisting duty is unfounded. The terms of the contract of rescission are of course valid if the rescission is valid. The defendant's answer to this claim is well stated in this quotation from Williston, Contr, 2d Ed., § 130a: "But calling an agreement an agreement for rescission does not do away with the necessity of consideration, and when the agreement for rescission is coupled with a further agreement that the work provided for in the earlier agreement shall be completed and that the other party shall give more than he originally promised, the total effect of the second agreement is that one party promises to do exactly what he had previously bound himself to do, and the other party promises to give an additional compensation therefor."
With due respect for this eminent authority, the argument appears to clothe consideration with insistence of control beyond its proper demands. With full recognition of the legal worthlessness of a bare promise and of performance of a subsisting duty as a void consideration, a result accomplished by proper means is not necessarily bad because it would be bad if the means were improper or were not employed.
It is not perceived that the requirement of consideration is necessarily disregarded in spite...
To continue reading
Request your trial
-
Gonzalez v. University System of New Hampshire, No. 451217 (CT 1/28/2005)
...Nashua Industrial Corp., 150 N.H. 141, 144-45, 834 A.2d 221 (2003). A promise without consideration is invalid. Watkins & Son v. Carrig, 91 N.H. 459, 461-62, 21 A.2d 591 (1941). Past consideration will not support a promise. Perreault v. Hall, 94 N.H. 191, 194, 49 A.2d 812 The defendants' r......
-
Brodeur v. Claremont School Dist.
...Restatement (First) of Contracts § 76(a) (1932) among other authorities). New Hampshire follows this rule. See Watkins & Son v. Carrig, 91 N.H. 459, 461, 21 A.2d 591 (1941); Eleftherion v. Great Falls Mfg. Co., 84 N.H. 32, 146 A. 172 (1929). So, unlike the employee's continued employment af......
-
Ellis Gray Mill. Co. v. Sheppard
... ... Tyler State Bank & Trust ... Co., 100 S.W.2d 152; Watkins & Son, Inc., v ... Carrig, 21 A.2d 591, 138 A.L.R. 131; Grand Trunk ... ...
-
Pet Milk Co. v. Boland
...consideration. There is no room in this case for the application of the so-called hardship rule (see Watkins & Son v. Carrig, 91 N.H. 459, 21 A.2d 591, 138 A.L.R. 131, 133), since appellee at the time he executed the written contract of April 26, 1944, was fully advised as to the conditions......