Of course it goes without saying that the parties could have canceled the old *220contract and subsequently have made a new one. It is equally plain that they observed the formalities usual in making a contract, that is to say, they performed all the necessary gestures, and gave promise for promise, and made what would have been, except for the rule of law under discussion, the clearest example of a good contract. But were the parties capable, at the time, of making that particular contract? The answer to that question depends upon the answer to the primary question whether, when the second contract was made, the first contract was at an end.
A true cancellation of a contract leaves the parties to it in statu quo ante, that is, it leaves them in the same situation, in respect of the subject matter of the canceled contract, as if they had never seen or heard of each other. An agreement to cancel a contract is itself just as truly a contract as the contract it terminates, and its effect is to put an end to the contract, not merely that the contractors may thereby be enabled to enter into another contract with each other, but to leave them in perfect freedom to refuse to enter into any further contractual relationship with each other. Now, it may be theoretically possible for parties to a contract genuinely to terminate it by agreement, thereby intending to be free to refuse to deal with each other again, and then immediately and genuinely to change their minds and re-make the contract that was canceled, with a change of terms in favor of one party only. It is more reasonable, however, to assume that at least some few moments must elapse between the time when two given minds shall agree to cancel an existing contract, and the time when those same two minds shall decide to reinstate it, or again make one very like it. In the world of realities *221lightning-fast changes of the kind that must have taken place to make the second contract good do not occur, and I feel quite safe in saying dogmatically that no such sudden revulsion occurred here; nor, indeed, do I understand that such an absurdity is claimed. Can it be seriously urged that the defendant was willing that the plaintiff should have any moment of freedom from the old contract — such freedom, I mean, as to give the plaintiff the right to seek employment from some one other than the defendant? I think it is very clear that the parties never intended to be free from each other, and that the new contract was a mere substitution for the old one, and that is precisely what the rule that refuses validity to a promise to pay more for what the promisee is already obligated to do, was intended to prevent.
There is nothing in this case that distinguishes it from the many cases in the books in which the ancient rule of law referred to was applied. The tearing up of one writing and the delivery of another writing in its stead are unimportant evidentiary details. Whenever the question of the rule’s applicability has arisen, one contract has been in legal effect destroyed, and another contract, valid but for the rule, has been substituted for it. Quite obviously, the physical tearing of a piece of paper accomplishes nothing more than does an oral agreement to cancel. And I see no importance in the particular chronological order in which the various physical gestures occurred. Indeed, it seems to me that the entire argument of the appellant amounts to nothing more than a mere magnification of the value of immaterial details, and misses the real meaning and purpose of the doctrine we are dealing with. That the courts have shown no disposition to authorize any departure from the rule is shown *222in a comparatively recent case (Weed v. Spears, 193 N. Y. 289) where it was said: “ 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 consideration to the appellant when measured by the obligations already resting upon the parties.”
The view I take makes it unprofitable to discuss any of the cases cited by my learned brother, except Lattimore v. Harsen, 14 Johns. 330, and Harris v. Carter, 3 El. & Bl. 559. In the Lattimore case the new contract that was held valid entirely changed the obligations of both parties, and so of course the rule in question had no applicability. It is true that in the English case the trial judge before making his decision asked for a.special verdict from the jury, but just what he expected them to pass upon I cannot con*223ceive, for there, as here, there was no hiatus between the two engagements, only one party was advantaged by the change, and there was nothing to decide but a question of law.
For the reasons stated, I vote to affirm.
Judgment and order reversed, with costs to appellant.