(dissenting).
The record on this appeal, stripped of nonessentials, presents the following case.
On April'26, 1944, the appellant as owner and the appellee as contractor met for the specific purpose of reducing to writing .an agreement between them for the construction by appellee of a sewer line and a water line, to serve one of appellant’s manufacturing plants. The parties had agreed upon the unit prices to be paid appellee for the excavation necessary in the work to be done. They had not agreed upon the method of computation of quantities of earth and rock excavated for which appellee was to be paid the unit prices a cubic yard agreed upon. At the time of this meeting appellee was fully advised concerning the difficulties to be encountered in the excavation work. He knew that he would be required to excavate quantities of both earth and rock in excess of the quantities for which he would receive payment if the method of computation insisted upon by appellant was accepted by him. Nevertheless, he accepted the terms offered by appellant and signed a written contract which plainly expressed the method of computation of the quantities of earth and rock excavated in the work and payable at the unit prices agreed upon.
Appellee can not now be heard to say that the written contract for the performance of the work, signed .by him and by the appellant on April 26, 1944, was not intended to be binding upon either of them, nor may he be permitted to vary the terms of the contract fixing the method of computation of quantities of earth and rock excavated by proof of prior or contemporaneous oral agreements between the parties. The trial court was correct in so instructing the jury. New Amsterdam Casualty Co. v. United States Shipping Board, etc., 4 Cir., 16 F.2d 847, 849, 850; Crim v. Crim, 162 Mo. 544, 63 S.W. 489, 491, 54 L.R.A. 502, 85 Am.St.Rep. 521; Supreme Lodge K. P. v. Dalzell, 205 Mo.App. 207, 223 S.W. 786, 789; Fischman-Harris Realty Co. v. Kleine, Mo.App., 82 S.W.2d 605, 611; England v. Houser, 178 Mo.App. 70, 163 S.W. 890.
The question of the validity of the alleged oral contract of June 1944, relied upon by appellee as changing the method of computation of quantities of earth and rock excavated by appellee, is controlled by Missouri law. See Lange v. United States, 4 Cir., 120 F.2d 886, 889. The performance of or promise to perform an obligation previously existing under contract is not sufficient consideration to support another contract. Lingenfelder v. Wainwright Brew^-*161ing Co., 103 Mo. 578, 15 S.W. 844; Ochs v. Equitable Life Assurance Society, 8 Cir., 111 F.2d 848. Since appellee was obligated by the written contract of April 26, 1944, to perform the work called for by that contract for the compensation clearly expressed in it, he had no right in June 1944 to abandon the contract because, as his proof shows, the appellant refused to pay him for excavation done under the contract, computed contrary to the terms plainly provided in it. When he abandoned the performance of the contract he was obligated to perform, he became liable to appellant for damages for breach of the contract. Appellant then had the right to employ another contractor to finish the work and hold appellee for the damage resulting from his refusal to perform it, or to permit appellee to proceed with the work and to perform the obligations and receive compensation provided in the contract which he had breached. As a matter of law, there could not have been any bona fide dispute between the parties as to the method of computation of quantities of earth and rock excavated by appellee plainly and clearly provided in the written contract. As a matter of fact there was no dispute on this question. Appellant’s promise to pay appellee compensation greater than that agreed upon by the parties in the written contract for performance of the work which appellee was obligated to do under that contract, if made, was not binding upon appellant because not supported by the necessary 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 appel-lee at the time he executed the written contract of April 26, 1944, was fully advised as to the conditions confronting him in the work. No Missouri case applying the hardship rule has been called to our attention by appellee, and none has been found.
For the reasons stated, I would reverse the judgment of the District Court and remand this case with directions to enter judgment for appellee for $6,929.39, the sum which the parties agree is owing to appellee if the rights of the parties are controlled by the written contract of April 26, 1944.