Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
The decisive question here is whether the plaintiffs are entitled to recover salary increases directed to be paid by L. 1938, c. 54 (R.S. 40:21-80), effective July 1, 1938, and amended by L. 1940, p. 292, R.S. 30:8-13.1, to jail guards in counties of the first class. The act provides that such employees "shall on July first following the passage of this act be entitled to receive an increase of two hundred dollars ($200.00) over his or her present salary and on July first in each year thereafter shall be entitled to a further increase of two hundred dollars ($200.00), not to exceed the maximum herein established." The act fixed the salaries at $2,000 minimum and $3,000 maximum. The plaintiffs, administratrices of the estates of their respective husbands, Thomas Francis Lane and Daniel S. Long (hereinafter referred to as "the guards"), instituted this action against the Board of Chosen Freeholders of the County of Hudson (hereinafter referred to as "the county"), for the unpaid statutory increases due the guards prior to June, 1944.
There is no factual dispute. The guards, at the effective date of the statute, were each receiving $2,200 per annum. Thereafter, the guards did not receive any increase until June 1, 1944, when the statutory increase was first made effective by
the county. The county admits that for almost six years it failed to provide for and pay the increase; that if the plaintiffs are entitled to recover, the sums sued for are correct. However, the county asserts that on June 1, 1944, the guards expressly waived in writing any and all claims to the increases. The writing provides, inter alia , as follows:
"* * * in consideration of the payment of wages thus increased, and in consideration of our respective signatures hereto, do hereby expressly waive any and all claims and demands whatsoever which we or any of us might have in and to any other compensation or wages which would otherwise accrue to us prior to or after June 1, 1944, under the provisions of said statute."
At the trial, the court granted the motion of the county for a directed verdict in its favor, predicating its determination on the clause: "* * * in consideration of our respective signatures hereto," holding that it was a clear, unequivocal, precise waiver in express terms based on consideration.
The appellants argue -- and we think correctly so -- that the alleged written waiver was without consideration. The parties are in accord that such an agreement must be supported by a consideration. The county argues that the payment of wages because of the date on which they were paid, and the mutual promises of their fellow employees to accept the payment of wages as provided in the alleged waiver agreement, constituted sufficient consideration for the express waiver; that slight consideration only is required to effectuate such an agreement, citing Haynes Auto Repair Co. v. Wheels, Inc. , 115 N.J.L. 447 (E. & A. 1935); Levine v. Blumenthal , 117 N.J.L. 23 (Sup. Ct. 1936); affirmed Ibid. 426 (E. & A. 1937).
"An express waiver is in the nature of an express contract, modifying to some extent the old one, that a waiver is necessarily a matter of mutual intention between the contracting parties, in the nature of a new contract between them; that a waiver to be operative must be supported by an agreement founded upon a valuable consideration; that a waiver is the intentional relinquishment of a known right based upon a consideration; that where a waiver is the
voluntary surrender or relinquishment of a known legal right as distinguished from intentionally doing an act inconsistent with claiming it, it amounts to an agreement and must be supported by a consideration which may be either a benefit to the promisor or a disadvantage to the promisee; * * *." 67 C.J., pp. 295, 296.
Unquestionably, "benefit and detriment" have a technical meaning, neither of which need be actual. To give up something which immediately prior thereto the promisee was privileged to keep on doing or refraining from something which he was then privileged not to do or refrain from doing constitutes "legal detriment." To warrant the conclusion that a legal benefit has been received, it must be the receiving as the exchange by the promisor for his promise of some performance or forbearance that he was not previously entitled to receive. Williston on Contracts (Rev. ed.), sec. 102 a, pp. 326, 328.
"Since a debtor incurs no legal detriment by paying part or all of what he owes, and a creditor obtains no legal benefit in receiving it, such a payment if made at the place where the debt is due in the medium of payment which was due, and at or after maturity of the debt, is not sufficient consideration for any promise. * * * Since the actual payment of a debt or the performance or partial performance of any existing obligation is insufficient consideration, a promise to pay a debt or to perform ...