(concurring).
Appellant presents 9 points on appeal wherein its contends to the effect that (1) appellant was entitled to judgment on its cross-action under the trial court’s findings, and (2) under the undisputed evidence, (3) that there was no evidence to support the trial court’s conclusion of law that appellant agreed to and did abandon and rescind the oral contract of December 6, 1956, and (4) that such conclusion of law was not supported by a preponderance of the evidence, that (5) under certain stated undisputed facts the trial court erred in not finding that appellant was not compelled by duress to enter into a new contract, that (6) under certain stated undisputed evidence the trial court erred in holding that appellee and appellant agreed to and did abandon and rescind the oral contract, that (7) under certain stated undisputed evidence the trial court erred in holding that the oral contract of December 6, 1956, was extinguished and that the written contract was substituted therefor; that (8) under certain undisputed evidence the trial court erred in holding that by the signing of the written agreement there was effected a novation whereby the oral contract was extinguished and a new valid and binding contract was created, and that (9) the parties having entered into a valid oral contract on Dec. 6, 1956, for the sale and purchase of the crane specified, for $16,691.00, there was no consideration for the later written agreement for appellant to pay appellee the sum of $30,750.00 for the crane.
Appellant in the “Conclusion and Prayer” portion of its brief has briefly stated its main contentions, and we quote in part therefrom as follows:
“•* * * In effect the court found:
“1. Smith Electric was obligated under the oral contract to deliver the crane required by the specifications for $16,691.00.
“2. Smith Electric refused to do so.
“3. King Construction Company insisted that Smith Electric deliver the crane for the price agreed upon.
“4. King Construction Company couldn’t get the crane from anyone *946else at any price within the time allowed.
“5. If King Construction Company had defaulted on its contract with the Atomic Energy Commission, King could have recovered of Smith Electric at least the difference between $16,691.00 and the reasonable cost incurred by King in purchasing the crane elsewhere.
“6. King Construction Company signed the new contract because it knew Smith Electric would not live up to its obligations under the oral contract.
“7. By reason of ‘fear of economic loss’ King Construction Company signed the new contract.
“From these facts the Court concluded that the written contract extinguished the oral contract and that King Construction Company agreed to abandon and rescind, the oral contract.
“Appellant submits three propositions :
“1. Under the Findings of Fact as made by the court, the court was in error in its Conclusions of Law.
“2. Bearing in mind that the burden of proving novation was on appellee, who introduced not one word of testimony in proof of one essential element —mutual consent, appellant submits that the trial court was in error in its Conclusions of Law; and
“3. The undisputed evidence, and the admissions of the appellee, showing that King Construction Co. signed the contract for the purpose of persuading Smith Electric to perform an existing obligation, there was no consideration for the new contract.”
It is my view that point 9, concerning the lack of consideration for the new contract, is especially well taken in view of the record in the case and in view of the trial court’s fact finding No. 62, reading as follows :
“62. None of the provisions in the written contract of W. M. Smith Electric Company, as finally prepared by Smith Electric and signed by the representative of King Construction Company, furnished an inducement or consideration to King Construction Company to agree to pay W. M. Smith Electric Company the difference between the price of $16,691.00, as originally agreed upon, and the new price of $30,750.00, as set out in the written agreement.”
The rule applicable to the fact situation here involved with reference to the lack of consideration for the new contract, is stated by Justice Norvell in DePuy v. Lone Star Dredging Co., Tex.Civ.App., 162 S.W. 2d 161, 165, wr. ref., w. o. m., as follows:
“Contracts for additional compensation for doing that which one is contractually obligated to do are discussed in the well considered case of Blakeslee v. Board of Water Commissioners of City of Hartford, 106 Conn. 642, 139 A. 106, 111, 55 A.L.R. 1319, wherein it is pointed out that such contracts are generally held unenforcible for the reason ‘that broadly to admit the power of a contractor to exact additional conu-pensation by refusing to continue performance would afford too many opportunities for exactions approaching very near to extortion.’ ” (Emphasis added.)
Also in this connection see the following authorities: 13 Tex.Jur.2d 203; Jones v. Risley, 91 Tex. 1, 32 S.W. 1027; Stone v. Morrison & Powers, Tex.Com.App., 298 S.W. 538; Barreda v. Craig, Thompson & Jeffries, Tex.Com.App., 222 S.W. 177.
“Business Compulsion” is a species of duress clothed in modern dress. In this connection see 17A Am.Jur. 564, Sec. 7, wherein it is stated in part as follows:
*947“§ 7. Doctrine of Business or Economic Compulsion. There is no doubt that the early common-law doctrine of duress has gradually expanded and broken through its original limitations, with the result that many states have adopted the modern doctrine of ‘business compulsion' or what is sometimes referred to as ‘economic duress or compulsion.’ This doctrine has been regarded by some of the courts as being different from duress, and in the sense that it is a relaxation of the early common-law rule this is true. Yet, broadly speaking, ‘business compulsion’ is a species of duress, not the common-law duress, to be sure, but duress clothed in modern dress.
“It seems to be established as a general rule, at least in this country, that the payment of money or the making of a contract may be under such circumstances of business necessity or compulsion as will render the same involuntary and entitle the party so coerced to recover the money paid, or excuse him from performing the contract.”
It is my further view that appellant signed the new contract under “business compulsion”, a species of duress clothed in modern dress, and that the new contract was not a true novation, inasmuch as the essential element of true voluntary mutual consent was lacking. In this connection see Barreda v. Craig, Thompson & Jeffries, Tex.Com.App., 222 S.W. 177, which contains an excellent discussion of a somewhat analogous matter.
Likewise as hereinbefore stated, there was no real or true consideration for the making of the new contract, and consequently there was no novation for this reason as well, as consideration is also an essential element of novation.
' It is my view that appellant was entitled to judgment on its cross-action under material fact findings made by the trial court as well as under the undisputed evidence in the cause, and that appellant’s points should be sustained.
I concur in the reversal of the judgment of the trial court and in the rendition of judgment for appellant on its cross-action against appellee.