CH. II. s. 2. tion). or detriment to the plaintiff; or if it be an act, or an agreement to do an act, which the promiser was already bound by law to perform; or if it be an engagement to do an act which is in the eye of the law of no value,-as to surrender a demise, strictly at will, such consideration is not sufficient to support a promise (i). As to particular kinds of forbearance, it is well settled that an Forbearance. agreement to forbear either absolutely (k), or for a certain time (1), or for a reasonable time (m), to institute or prosecute legal or equitable proceedings to enforce a legal or equitable demand, is a sufficient consideration for the promise of the debtor, or of a third person, to pay the debt, or do any other act (n). By such forbearance the creditor is delayed, and the debtor is, or may be benefited; so that there concur both the ordinary grounds upon which a sufficient consideration may be rested. Thus, where the declaration stated that there had been, and then were, divers accounts between the plaintiff and defendant, which accounts were open and unsettled; and that the plaintiff claimed of the defendant that he was indebted to him in a large sum of money, and the defendant claimed of the plaintiff, that he, . the plaintiff, was indebted to the defendant; and that it was agreed between the parties, that each of them should withdraw his claim, and that the defendant should pay the plaintiff an annuity for life; and it then averred that, in consideration that the plaintiff would withdraw his claim, the defendant promised to pay the annuity: it was held, that a valid consideration for the defendant's promise appeared on the face of the declaration, inasmuch as there was a plain detriment to the plaintiff in foregoing his claim to the balance (o). So that forbearance for a given time, on the part of the assignee of a bond, to sue the obligor, is a good consideration for a promise by the obligor to pay the assignee at the expiration of that time, or give him a warrant of attorney for the amount (p). And the same rule holds in the case of forbearance by the assignee of a debt, such forbearance being as beneficial to the debtor as if the assignee had been the original creditor and had forborne (q). So forbearance by the creditor, or by an assignee of the debt of a testator, at the request of his executor, to sue the executor, is a good consideration for a promise by the executor to pay the debt (r). 559. (0) Llewellyn v. Llewellyn (1845), 3 D. & L. 318. (p) Morton v. Burn (1837), 7 A. & E. 19, 25. (q) Reynolds v. Prosser (1656), Hard. 71; Oble v. Dittlesfield (1671), 1 Vent. 153; 1 Wms. Saund. 210, n. (r) Fisher v. Richardson (1604), Cro. Jac. 47; 1 Roll. Abr. 20, pl. 11; Pet v. CH. II. s. 2. Forbearance from affilia tion. Bonâ fide compromise of non-sustainable claim. Miles v. New Zealand, &c., In respect of which, some one must be liable to be sued. So it is a sufficient consideration for a promise by the defendant, to pay a sum of money to the plaintiff, that the plaintiff,-who held a bill of sale against the goods of a third person for a debt,agreed, at the request of the defendant, to give up the goods, and forbear to sell them (s). So, a promise by the father of an illegitimate child, that in consideration that the mother would abstain from affiliating the child, he would pay her a certain sum for its maintenance, would appear to be founded on a sufficient consideration (t). A bona fide compromise of a claim is equally good, although the claim may not be sustainable in law. If A. honestly believe that he has a claim against B. and forbears to press it at B.'s request, this is a good consideration for a contract between the two, although the claim may be really groundless. This rule (u), though it has been doubted (x), has been affirmed by the Court of Appeal in Miles v. New Zealand Alford Estate Company (y). But where the declaration was, that the plaintiff had commenced an action against the defendant, which had proceeded to issue; and that, when the issues were about to be tried, the defendant, in consideration that the plaintiff would forbear proceeding in that action until a certain day, promised to pay the amount on that day, but that he made default, &c.; and the defendant pleaded, that the plaintiff never had any cause of action against the defendant, as he, the plaintiff, at the time of the commencement of the said action, and thence until and at the time of making the promise, well knew: this plea was held to be a good answer to the action (a); and forbearance in pursuance of a dishonest bargain is not a good consideration (b). A promise in consideration of forbearance is not valid, unless it appear that, at the time the promise was made, there was some person who was liable to be sued by the plaintiff (c). Thus, the promise of an executor, in consideration of forbearance of a debt contracted by his testator whilst he was an infant, is invalid (d). So where a feme covert, carrying on business as a feme Bridgewater (1651), cited arguendo, Hard. 74. (s) Barrell v. Trussell (1811), 4 Taunt. 117. (t) Linnegar v. Hodd (1848), 5 C. B. 437. (u) Cook v. Wright (1861), 1 B. & S. 559; Callisher v. Bischoffsheim (1870), L. Rep., 5 Q. B. 449; Ockford v. Barelli (1871), 20 W. R. 116. (x) By Brett, L. J., in Ex parte Banner (1881), 17 Ch. D. 480, at p. 490. (y) Miles v. New Zealand Alford Estate Co. (1886), 32 Ch. D. 266, C. A. See, also, Willatts v. Kennedy (1831), (a) Wade v. Simeon (1846), 2 C. B. 548; and see Edwards v. Baugh (1843), 11 M. & W. 641. (b) Banner, Ex parte (1881), 17 Ch. D. 480, C. A. (c) See Com. Dig. Action upon the Case upon Assumpsit (F. 8); Jones v. Ashburnham (1804), 4 Fast, 455. (d) Tooley v. Windham (1591), Cro. Eliz. 206; Stone v. Wythipol (1588), id. 126. sole trader in London, contracted a debt in the way of her trade, and, after her death, her husband, in consideration of forbearance, promised to pay it; it was held to be a void promise (e). So, where the plaintiff declared that A. since deceased, was indebted to him in a certain sum, and that, after A.'s death, in consideration of the premises, and that the plaintiff would, at the defendant's request, forbear and give day of payment of the debt,—not stating to whom he was to forbear, the defendant promised, &c. : the Court held, upon demurrer, that the declaration was bad, upon the ground that it was not shown that there was any personal representative or other person who was liable to the debt; and, consequently, that it did not appear that the plaintiff could have sustained any detriment by suspending proceedings (ƒ). CH. II. s. 2. absolute. But, as we have seen, it is not necessary that the forbearance Need not be should extend to an entire discharge of proceedings (g); nor is it material whether the proceedings to be forborne have been commenced or not (h). nite time. So, where the declaration stated the consideration to be an agree- Nor for a defiment to forbear, not showing for what time, and there was an averment that the plaintiff forbore for a long time; it was held, upon motion in arrest of judgment, that the declaration was sufficient; for that it should be intended that the plaintiff agreed to forbear for a convenient or reasonable time, and that was a sufficient consideration (i). And although this last position has been questioned (k), still the better opinion seems now to be,-that an agreement to forbear, in which no time is mentioned, is good; and that such an agreement may be treated in pleading, as an agreement to forbear for a reasonable time (1). there be an Nor need there be any express promise to forbear. It is sufficient Nor need if circumstances existed from which such a promise may be implied. express proThus, where the defendant, to gain time for his father to pay a mise to fordebt, signed a note whereby he and his father jointly and severally promised to pay the debt with half yearly interest till payment, and (e) Fabian v. Plant (1792), 1 Show. 183. (f) Jones v. Ashburnham (1804), 4 East, 455. It is observable that this ease was upon demurrer. The Court distinguished it from a case cited by counsel, in which the declaration had been supported after verdict, though it did not clearly state to whom the plaintiff was to forbear the alleged debt; because it might be presumed after terdict, that the plaintiff had proved at the trial that there was somebody to whom the plaintiff did forbear; and see Marshall v. Birkenshaw (1805), 1 B. & P. (N. R.) 172. (g) Semple v. Pink (1847), 1 Exch. 74; Oldershaw v. King (1857), 2 H. & N. 517, Ex. Cham. (h) See per Tindal, C. J., and Cresswell, J., Wade v. Simeon (1846), 2 C. B. 548, 565, 567. (i) Mapes v. Sidney (1624), Cro. Jac. 683; 1 Roll. Abr. 24, pl. 133. (k) Semple v. Pink (1847), 1 Exch. 74; Seckford's case (1594), Cro. Eliz. 455. (1) Oldershaw v. King (1857), 2 H. & bear. CH. II. S. 2. the plaintiff, though he made no express promise to forbear, actually Requisites forbore for several years, it was held that there was a good conof Simple Contract sideration for the defendant's liability on the note (m). (Considera tion). Party promis ing need not have an interest in the delay. Intrusting a party with property. Party intrusted liable for mis-feasance, but not for 66 But it appears that a promise to forbear "for a little time" (n), or for some time" (0), is too indefinite to constitute a good consideration for a contract. And it is clear, from the cases already quoted, that it is not material that the party who makes a promise, in consideration of forbearance to a third person, has no interest in the transaction, and cannot be benefited by the delay (p). The fact of intrusting a person with property is a consideration, in itself, for his promise that, if he acts upon the trust, he will faithfully discharge it. The obligation in this case arises ex mandato, which is defined to be, contractus quo aliquid gratuito gerendum committitur et accipitur (q). And Bracton (r) says, "Contrahitur etiam obligatio non solum scripto et verbis, sed et consensu, sicut in contractibus bona fidei; ut in emptionibus, venditionibus, locationibus, conductionibus, societatibus et mandatis." Therefore, although an action will not lie for not doing a thing where there is no consideration, such as reward, to uphold a promise to do it; yet where there is a delivery of goods and chattels, or monies, to a person who undertakes to do something respecting them, even without any reward for his trouble, an action will lie on this bailment, if there be a neglect in the management, by which the goods are spoiled, or the like. The above distinction is clearly taken in the Year Book, 11 H. 4, 33, where an action was brought against a carpenter, for that he had undertaken to build the plaintiff a house within such a time, non-feasance, and had not done it; and it was adjudged the action would not lie, no consideration being laid. But there the question is put to the Court-what if he had built the house unskilfully? And it was agreed, that in such case the action would have lain (s). Voluntary This principle was much considered by Holt, C. J., and all the judges, in the leading case of Coggs v. Bernard (t). That was an action on the case, wherein the plaintiff declared that, whereas the defendant assumed safely and securely to take up several hogsheads (m) Crears v. Hunter (1887), 19 Q. B. p) See Smith v. Algar (1830), 1 B. & Ad. 603; Pullin v. Stokes (1794), 2 H. (9) Vinnius, Com. on Just. lib. 3, tit. 27, 684. (r) Bract. lib. 3, 100. (s) And see Y. B. 19 Hen. 6, 49; 48 Edw. 3, 6. (t) Coggs v. Bernard (1704), 2 Ld. Raym. 909; 1 Sm. L. C. of brandy, then in a certain cellar in D., and safely and securely to lay them down again in a certain other cellar in W.; the said defendant and his servants and agents, so negligently and improvidently put them down again into the said other cellar, that, for want of care in the defendant, his servants and agents, one of the casks was staved, and a great quantity of brandy spilt; and a motion was made in arrest of judgment, because it was not alleged. in the declaration that the defendant was a common porter, nor averred that he had anything for his pains. But as to the objection, that there was no consideration to ground the promise upon, and that the undertaking was nudum pactum, the Court answered: that the owners trusting the bailee with the goods, was a sufficient consideration to oblige him to a careful management. Indeed, if the agreement had been executory, to carry these brandies from one place to another such a day, the defendant had not been bound to carry them; but this was a different case; for assumpsit did not only signify a future agreement, but, in such a case as this, it signified an actual entry upon the thing, and taking the trust upon himself. And if a man will do that, and miscarries in the performance of his trust by reason of gross neglect, an action will lie against him for that, though nobody could have compelled him to do the thing. It has been held, too, that a declaration which stated, that the plaintiff, being about to proceed to N., paid money to the defendants in London, that they might cause it to be paid to him at N. on a certain day; that the defendants received the money for that purpose from the plaintiff; and that thereupon, in consideration of the premises, they promised to cause the money to be paid to the plaintiff at N., disclosed a sufficient consideration for such promise (u). Whitehead v. Greetham (x) is another authority upon this subject. There the declaration stated, that the plaintiff had retained the defendant at his request, to lay out 7001. in the purchase of an annuity; that the defendant promised to use due care to lay out the money securely; that the plaintiff delivered the money to the defendant for that purpose: but that he laid it out on insufficient security; and it was held in the Exchequer Chamber, after verdict, that the mere delivery of the money was a sufficient consideration for the promise; and that it was not fatal to the count, that it did not show that the defendant was to receive any reward for his services. u) Shillibeer v. Glyn (1836), 2 M. & Bing. 464. And see also Dartnall v. 143, following Wheatley v. Low Howard (1825), 4 B. & C. 345; Balfe v. West (1853), 13 C. B. 466. 24), Cro. Jac. 668. 2) Whitehead v. Greetham (1825), 2 CH. II. s. 2. tion). |