#### DANIEL FESTERMAN vs. LEWIS PARKER.

The construction of n contract is a matter of law. When committed to writing, the meaning of the terms, when they are explicit, is a question for the Court; but if doubtful and uncertain, they may be submitted to a jury with proper instructions. If the contract is verbal and the parties dispute about the terms, that is a matter of fact for the jury ; but if there be no dispute about the terms, and they be precise and explicit, it is for the Court to declare their effect.

If a contract to perform certain stipulated services, for a certain sum, is not rescinded by the mutual consent of the parties, then a promise to pay an additional sum for the same services is without consideration and cannot be enforced.

The ease of Massey v. Belisle, 2 Ire. 176, cited and approved.

Appeal from the Superior Court of Láw of Anson County, at the Fall Term 1848, his Honor Judge Peaesos presiding.

*475This was an action of assumpsit. The plaintiff declared specially, and for work and labor done, and materials furnished, goods, wares, and merchandise sold and delivered : and for money paid to the use of the defendant.

The plaintiff proved, that, in the Spring- of 1844, he contracted to construct and put into operation a saw mill, in a mill house of the defendant. The plaintiff was to do the work and find all the irons. The defendant, in consideration thereof, was to pay the plaintiff' the sum of 0100, and to board him and his hands and find the timber. The defendant, at the time of the contract advanced to the plaintiff #20, to buy a saw and other articles, which the plaintiff was to furnish. The #20 was to be a part of the #100.

Shortly after this, and before the plaintiff had commenced the work, the defendant sent word to the plaintiff, by one Kennedy, that he wished to know, why he did not come and begin the work ? The plaintiff sent back word to the defendant, that he would not build the mill upon the terms agreed on, that the price was too low. The defendant, thereupon, sent a message to the plaintiff, by Kennedy, “tell him to come and do' the work, I will do what is right or pay what is right” — the witness did not recollect which word, “do” or “pay,” was used. The plaintiff soon after went and constructed the saw mill and put it in operation. The plaintiff offered evidence to shew, that the materials furnished by him (viz., the mill irons,) and the work done by him, if done in workmanlike manner, at the usual rates of workmen’s charges, was worth #150 The defendant offered evidence, tending to shew that the work was, in several particulars, defective and insufficient — for instance, that the water-gate was so badly fixed, that a fence rail had to be used to push it up and down, where the water was to be let-on or stopped — that the carriage was made to run by ropes instead of having cogs in the usual wmy — that after try*476ing (he mill some time, he got another workman to come and fix it, by putting in a new carriage with cogs, making a new gate, &c„ for which he paid $30 — that a good deal of the timber was spoiled by the plaintiff, and other-timber was got by the second workman.

The defendant proved payments and set offs to the amount of $100.

The Court charged, that upon the first count, on the special contract, the plaintiff could not recover, if the defendant had proved payments and set offs, to the amount of the price agreed upon, viz: $100, supposing the work to have been well done.

Upon the second count, on a promise to pay for the materials furnished and work done, implied from the defendant’s having made use of the materials and work, the Court charged, that when work is not done according to contract, although the party cannot recover on the contract, still he may recover for the materials and work : but the amount cannot be greater than the original price, and the rate was, if the materials and work, well done according to contract, be worth $100, how much less is the value of the materials and work as actually done, and the plaintiff would be entitled to recover the amount so ascertained with reference to the original price. So the plaintiff could not recover, if the payment and setoffs had been proven to the amount of $100,

Upon the other view presented by the plaintiff’s counsel,, the Court charged, that, if the original contract had been rescinded by mutual consent, so that neither was any ways bound, and the defendant had promised to do what was right or pay what was right (or (he materials and work, then the plaintiff would be entitled to recover the value therefor, which he insisted was $150, But the Court was of opinion, there was no evidence to shew that the original contract had been rescinded by mutual con*477sent, so that neither was any ways bound, and another contract substituted as contended by the plaintiff.

On the contrary, the evidence tended to shew, that the plaintiff, having received $20, and being slow to begin the work, because he thought the price too low, the defendant, to induce him to begin, promised to “do and pav what was right,” and if, by this, he was to be understood, as making an additional promise to pay more than the price agreed on, it was not binding for want of a consideration. If a man agrees to do work for me at the price of $100, and, afterwards before he begins the work, I promise to pay an additional sum of $50, if he will do the work, there is no consideration for the latter promise. The jury returned a verdict for the defendant — rule for a new trial for error in the charge refused, and the plaintiff appealed.

Strange, for the plaintiff.

Hargrave, for the defendant.

Nash, J.

In the argument of the case here, the first exception taken by the plaintiff’s counsel to the Judge's charge is, that it oughtto have been submitted to the jury to decide, whether or not the first contract was rescinded by the parties. His Honor instructed the jury there was no evidence, that the original contract had been rescinded and another substituted. There can be no doubt, but that the construction of a contract is a matter of law. If committed to writing, the meaning of the terms, where they are explicit, is a question for the Court; but if doubtful and uncertain, they may be submitted to the iury, with proper instructions given hypothetically, ns the case might be, and in doing so, no error is commuted, as has been declared by the Court this term. And if verbal, and the parties dispute about the terms of the agreement, it involves a question of fact, as to the terms, to be decided *478by the jury ; but if there is no dispute as to the terms, and they be precise and expiict, it is for the Court to declare their effect. Massey v. Belisle, 2 Ire. 176. Here there is no dispute as to the terms, but only as to their effect. In considering the question, as one of law and not of fact, the Judge below committed no error. This brings up the main question, so far as this case is concerned, viz , was the construction put upon the terms, used by the plaintiff and the defendant, correct in point of law? The plaintiff had agreed to build a mill for the defendant, for the sum of $100, and had received in part payment, the sum of $20. Becoming dissatisfied with his contract, he sent the defendant word, that he could not do the work for that sum, to which the defendant replied, “tell him to come and do the work, I will do what is right ov pay what is right.”/. One party to a contract cannot rescind it; to do so there must be the action of both parties, showing an assent to it, for it is as much a contract to rescind one as to make one. Jf in this case the plaintiff had sent back the money, which had been paid to him, and the defendant had received it, or if the defendant had brought an action for it, the original contract would have been rescinded. There is nothing in the case to show, that either the plaintiff or the defendant had intended to set aside the first contract. The plaintiff found, upon reflection, that he had made a bad bargain and was desirous to improve it; the defendant had made Ms calculations, and was willing to give the sum agreed on „to have his mill built. Perhaps it was as much as the work wras worth or as much as he was able to give. At any rate such was the contract between the parties; the'plaintiff was to build the mil! and the defendant pay therefor $100. The first contract wras not rescinded.

• His Honor, having instructed the jury, that the contract was not rescinded, proceeded to charge them, as to the effect of the promise made by the defendant, if any was *479made, by using the words, “do or pay what is right.” “If, by this, he was to be understood, as making an addition* al promise to pay more than the price agreed on, it was not binding, “for want of a consideration.” On the part of the plaintiff it is insisted, that although the first con* tract was not rescinded, yet the parties were at liberty to vary it. There is no doubt of this proposition ; but it will be recollected, that the variation of a contract is así much a matter of contract as the original agreement — it‘ equally requires the concurrence of intention in the parties ; it cannot be varied at the mere will and pleasure of either. But in what was the contract in this case varied; not in the'work to be done, that was not altered in the slightest manner ; the plaintiff came under no new obli* gation ; he was to do the same work he had previously bound himself to do. It was varied, says the plaintiff, in this, that the defendant promised to give an additional fifty dollars, if he would build the mill. Let it be admit*-' ted, that the defendant, under the circumstances^"had, in so many words, promised the plaintiff, $hat he would give him fifty dollars more, or one hundred vand fifty dollars, for building the mill, would that have been in law a valid promise ? I concur in the opinion, that it would not. A consideration is an essential ingredient to the legal exis* tence of every simple contract. This consideration con* sists, as defined by Mr. Smith, in his treatise on contracts, p. 87, to be, “any benefit to the person, making the promise, or any loss, trouble, or inconvenience to, or charge upon the person to whom it is made.” ^ The case states that the one hundred dollars, originally promised, had been paid by the defendant, and the controversy is for the fifty dollars under the alleged promise. What loss# trouble or inconvenience, or charge resulted to the plaintiff’ by his executing the work ? He was bound to build the mill by his original contract, and he was to do and did nothing more. What benefit was to result to the de„ *480fendant by tbe promise to pay the additional fifty dollars ? None whatever ; he was to get from the plaintiff precisely the same quantum of work, without it as with it. The promise therefore, if made, was purely a “nudum pactum,” not binding in law, however it may be so in honor and conscience. The enforcement of contracts, of the latter character, in the language of Lord Denman, in Eastwood v. Kenyon. 11 Ad: and El: 438, however plausibly recommended by ‘'the desire to effect all conscientious engagements, might be attended with mischievous consequences to society.” The truth of this opinion might be illustrated by a variety of cases. One is furnished by that of Harris v. Watson, Peake 72. There it was laid down by Lord Kenyon, that a promise made by a captain of a ship, to one of his seamen, when the vessel was in extraordinary danger, to pay him an extra sum of money, as an inducement to extra exertion for her safety, a. void promise, beeause every seaman is bound to ex r£ himself to the utmost for the safely efthe ship, and therefore the Captain would get nothing fr#m the seaman in exchange for his promise, except that which the seaman was bound to do before. The principle, established or recognized in the case last cited, governs this; the plain» tiff was bound to do the work and the defendant would get nothing for the new promise, but what he was enti" tied to before he made it. If the words used by the defendant amounted to a promise, it is nudum pactum, as founded on no legal consideration, and his motive in using them is every obvious ; it was to induce the plaintiff to do'that, which, by his contract, he was already bound to do. In the argument, the counsel referred the Court to two cases. One from 52nd E. C L. R. 361, Pontifixv. Wilson, and the other from 19th John; 205, Wood v. Edwards. We do not think either assists the plaintiff’s case. In the first, the plaintiff had' contracted to erect certain buildings for the defendant, who was to paj a stipulated *481price, when they were delivered. When the buildings had progressed some time, the plaintiff refused to go on with the work, unless the defendant wodld give security for the payment of the money. “The whole dispute,” says Chief Justice Tindal, “as shown by the correspondence was, whether the defendant wouldgive the security, which the plaintiff insisted on, and had no right to insist, on.” The case in Johnson was, that the parties had entered into a contract, under seal, for the purchase and delivery of a certain quantity of coal, at a price agreed. After its execution, a new agreement was drawn up by the plaintiff, but unexecuted by him, and sent to the defendant for his approval. The defendant, by letter, expressed his willingness to alter the old agreement, and promised to execute the new one at some future time, but never did. The action was in assumpsit on the new agreement. The Court decided, that the first agreement was not set aside, but was in force, and that the proposition of the defendant to execute the new one was not binding on him; as well on the ground of want of considei'ation as of mutuality. These cases sustain the view taken by the Judge below, both as to the rescinding of the original contract, and the invalidity of the second, if made.

No exception is taken to his Honor’s charge upon the first count in the plaintiff’s declaration, nor to the second, as to the rule laid down by him as to the measure of damages.

Per Curiam.

Judgment affirmed.