Meyer v. Livesley

*389Decided April 12, 1910.

Respondent’s motion for rehearing denied May 17, 1910.

On Petition for Rehearing.

[IOS Pao. 121.]

6. The motion for a rehearing is urged upon the contention that the expenditure by plaintiff in harvesting, curing, baling, and storing the hops was the legal duty of plaintiff, and therefore, cannot constitute a consideration for defendant’s promise to pay. It is the general rule, that doing or promising to do what one is already bound to do is not a consideration sufficient to support a contract. This existing obligation may be imposed by law, independent of contract or result from a subsisting contract. 9 Cyc. 347; Page, Cont. §§ 311,312.

7. In this case plaintiff’s obligation was not one imposed by law. If it existed at all, it must have arisen out of contract; but it has been adjudicated that there was no contract between plaintiff and defendants, and, therefore, plaintiff owed them no contractual duty. He was held to be a trespasser. Defendants were not seeking to enforce the terms of the lease with Huston, under which they were to receive one-fourth of the crop when harvested, but to secure the whole crop, not under a contract, but against a trespasser. Plaintiff may have been liable to defendants on an undertaking given in the injunction suit; but, if so liable, it was not conditioned for the care and harvesting of the crop, or retaining it subject to the final decree in the suit, but to respond in damages if the injunction was wrongful. And even though much of the expenditure was made in expectation of winning the suit, and, therefore for his own benefit, but from which he derived no benefit, it was beneficial to defendants, and they promised to pay for it, and the promise is within the holding in Forbis v. Inman, 23 Or. 68 (31 Pac. 204).

*390Also the agreement included much more than was contemplated by the lease or due from plaintiff, if defendants were relying upon the lease; viz., it required him to store the whole crop of hops in the hop house and not move them out of Polk County until the decision of the Supreme Court. This was complied with, and was a sufficient consideration for the whole promise.

The motion is denied.

Reversed: Rehearing Denied.

Respondents’ Motion for Rehearing Denied.