Consideration 57The duty arose under a previous contract with the same person
Until recently it was not possible to create two contracts by giving the same person the same
consideration twice. The following case established this principle.
The facts of Hartleyv Ponsonby (1857)were very similar, except that half of the crew had
deserted. To carry on with half a crew would have been dangerous. It was held that the
sailors who agreed to continue the voyage were entitled to the extra payment which the
Shadwell vShadwell (1860)The claimant was engaged to marry Ellen Nicholl. In those days, such an engagement
amounted to a contract. If the claimant had breached the contract, by not marrying Ellen
Nicholl, then she could have sued him. The claimant’s uncle was pleased that the marriage
was going to take place, and agreed that after it had he would pay the claimant £150 a year
until the claimant’s income as a barrister amounted to £630 a year. This agreement was to
last for the whole of the uncle’s life. The uncle died 18 years after the marriage had taken
place. He had paid the full allowance for 12 of the 18 years and part of the allowance for
one year. The claimant sued for the amounts of the allowance which had not been paid.
HeldThe claimant was entitled to the allowance which had not been paid. He had already
made a contract with Ellen Nicholl that he would marry her. However, he was entitled to
give exactly the same consideration (marrying Ellen Nicholl) in a separate contract with his
uncle.
CommentA modern example of this principle can be seen in New Zealand Shipping Co
v A. M. Satterthwaite & Co (1974)(Privy Council). A business which had agreed with a
shipowner that it would unload a ship (contract 1) could give the same promise to unload
the ship to the owner of the goods on the ship (contract 2).Stilk vMyrick (1809)The claimant signed a contract, agreeing to be a sailor on a ship for wages of £5 a month.
The ship had a crew of only eleven men. When two of the crew deserted, the captain prom-
ised the remaining nine that if they continued with the voyage, as they had originally agreed
to do, they could have the wages of the two deserters shared amongst them. The claimant
and the other eight remaining crew agreed to this and completed the voyage. However, the
captain refused to pay any more than the £5 a month originally agreed. The claimant sued
for his share of the extra money which had been promised.
HeldThe men were not entitled to the money which they had been promised. At the start
of the voyage they had promised the captain that they would do their duty in return for £5
a month. They could not later give the captain the same promise as consideration for a new
contract.
CommentIt might be thought that the nine remaining crew were doing more than they
had originally agreed. However, the court thought that they had agreed to do whatever was
necessary to complete the voyage. Lord Ellenborough said: ‘They had sold all their services
till the voyage be completed.’