[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 291 I do not see any theory on which the recovery by respondents over against appellant of the balance which they paid on the Small note can be sustained. The only *Page 292 ground on which they seek to do it is the parol agreement of 1897, whereby they and the appellant purported to apportion between themselves the notes indorsed by them for the Sulphite Pulp and Mining Company which each was to pay. At this time the respondents and appellant concededly were firmly and legally bound by the prior agreement of 1894 to pay this indebtedness in certain proportions. The second agreement now relied on by respondents assigned to them and they actually paid, including the balance on the Small note which they now seek to recover, a much smaller amount of indebtedness than they were then obligated to pay, and conversely, said agreement assigned to the appellant and he actually paid independent of said Small indebtedness a much larger amount of indebtedness than he was then bound to pay. The only consideration for the promise of appellant to pay certain notes including the Small note was the new promise of respondents that they would pay certain debts amounting to less than they then could be compelled to pay under the original agreement. Thus, the only question presented in this case is whether a new promise by a party to do less than he has already agreed to do is a sufficient consideration for the promise of another party to do more than he is obliged to do. It seems to me that the negative answer to that question is so plain that there is no opportunity for doubt.
Brief reference will be made to some of the arguments advanced in behalf of the respondents in favor of a different answer.
It is said that mutual promises are a consideration for an executory agreement, and that the respondents having performed their executory agreement it will be a perversion of the rules of law to permit the defendant now to escape performance on his part. Of course there is no doubt that under ordinary circumstances mutual promises are a consideration one for the other, and such was undoubtedly the effect and value of the mutual promises of these parties contained in the original written agreement. The trouble with the last mutual promises relied on by the respondents is that they afford no *Page 293 consideration to the appellant when measured by the obligations already resting upon the parties.
It is also true that a written agreement may be modified by an oral agreement, but where the liability of a party has been incurred and become fixed under a valid agreement he is not released from such liability by a purported modification which is without consideration of any kind.
While, as suggested, it may have been a matter of practical convenience for the respective parties to understand what notes each should take care of as they became due, and while possibly the respondents, under the agreement reducing the amount of notes which they were to pay, have actually paid more than they would have paid under the original agreement and larger liability, these things do not furnish a legal consideration for the promise of appellant to pay more and to permit the respondents to pay less than had originally been agreed on. The law assumes that a party will perform his agreement, and at least, under the circumstances of this case, the fact that he does so does not furnish a new obligation or consideration as against the party benefited by such performance.
The judgments should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Judgments reversed, etc.