of Simple CH. II. s. 2. 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 (p). Contract (Considera tion). Forbearance. Forbearance from affiliation. Bona fide compromise of non-sustainable claim. Miles v. New Zealand, &c., Company. As to particular kinds of forbearance, it is well settled that an agreement to forbear either absolutely (q), or for a certain time (r), or for a reasonable time (8), 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 (t). 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. Therefore, 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 (u). 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 (x). 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 (y). 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, is founded on a sufficient consideration (z); but it is no bar to the jurisdiction of justices to make an affiliation order, though it is one of the circumstances to be taken into consideration by them in deciding how to exercise their discretion as to making an order (a). A bonâ 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 (p) See Clutterbuck v. Coffin (1842), 4 Scott, N. R. 509, 522. (q) Mapes v. Sidney (1624), Cro. Jac. 683. (r) Semple v. Pink (1847), 1 Exch. 74. (8) Oldershaw v. King (1857), 2 H. & N. 517, Ex. Cham. (t) Cook v. Wright (1861), 1 B. & S. 559. (u) Morton v. Burn (1837), 7 A. & E. 19, 25. the two, although the claim may be really groundless. This rule (b), though it has been doubted (c), has been affirmed by the Court of Appeal in Miles v. New Zealand Alford Estate Company (d). CH. II. s. 2. Claim known But forbearance to proceed upon a claim not only not sustainable, but known by the party forbearing not to be so, is not a good to be not consideration (e); nor is forbearance in pursuance of a dishonest bargain (f). 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 (g). Thus, the promise of an executor, in consideration of forbearance of a debt contracted by his testator whilst he was an infant, is invalid (h). So where a feme covert, carrying on business as a feme 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 (i). sustainable. Dishonest bargain. Some one must be liable to be sued. absolute. But, as we have seen, it is not necessary that the forbearance Need not be should extend to an entire discharge of proceedings (k); nor is it material whether the proceedings to be forborne have been commenced or not (1); or whether forbearance has been promised for a definite time or not; for the forbearance, if no time is stipulated for, is construed as being intended to continue for a reasonable time (m). there be an express pro bear. Nor need there be any express promise to forbear. It is Nor need sufficient if circumstances existed from which such a promise may be implied. Thus, where the defendant, to gain time for his mise to forfather to pay a debt, signed a note whereby he and his father jointly and severally promised to pay the debt with half yearly interest till payment, and the plaintiff, though he made no express promise to forbear, actually forbore for several years, it was held (b) 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. (e) By Brett, L.J., in Ex parte Banner (1881), 17 Ch. D. 480, at p. 490. (d) Miles V. New Zealand Alford Estate Co. (1886), 32 Ch. D. 266, C. A. See, also, Willatts v. Kennedy (1831), 8 Bing. 5; Tempson v. Knowles (1849), 7 C. B. 651; Llewellyn v. Llewellyn (1845), 3 D. & L. 318. (e) Wade v. Simeon (1846), 2 C. B. 548; and see Edwards v. Baugh (1843), 11 M. & W. 641. (f) Banner, Ex parte (1881), 17 Ch. D. 480, C. A. (g) See Com. Dig. Action upon the Case upon Assumpsit (F. 8); Jones v. (h) Tooley v. Windham (1591), Cro. 126. (i) Fabian v. Plant (1792), 1 Show. 183; and see Jones v. Ashburnham (1804), 4 East, 455. (k) Semple v. Pink (1847), 1 Exch. 74; Oldershaw v. King (1857), 2 H. & N. 517, Ex. Cham. (7) See per Tindal, C.J., and Cress- (m) See Oldershaw v. King (1857), 2 CH. II. S. 2. Party promis- Coggs v. Assignment of a debt or right. that there was a good consideration for the defendant's liability on the note (n). 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 (o). The extent of obligation upon a voluntary service was much considered by Holt, C.J., and all the judges, in the leading case of Coggs v. Bernard (p). That was an action on the case, wherein the plaintiff declared that, whereas the defendant assumed safely and securely to take up several hogsheads 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, or 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. Whitehead v. Greetham (q) 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. The assignment of a debt, even of an uncertain or unascertained amount, due from a third person, is a sufficient consideration for a promise by the assignee (r), so as to give the assignee a right of (n) Crears v. Hunter (1887), 19 Q. B. D. 341, C. A., reversing decision below. (0) See Smith v. Algar (1830), 1 B. & Ad. 603; Pullin v. Stokes (1794), 2 H. Bl. 312. (p) Coggs v. Bernard (1704), 2 Ld. Raym. 909; 1 Sm. L. C. (1) Whitehead v. Greetham (1825), 2 Bing. 464. And see also Dartnall v. (r) Mousdale v. Birchall (1772), 2 W. Bl. 820; Com. Dig. Action upon the Case upon Assumpsit (B. 83); per Bayley, and Holroyd, JJ. (1825), Price v. Seaman, 4 B. & C. 525. suit in his own name against the debtor (s). So it has been held, that an agreement by A., at the request of B., to give up 1501. part of a debt of 2001., due from C. to A., and to accept a third person as his debtor as to that part, is a good consideration for a promise by B. to procure a cheque or note from such third person, in favour of A., for the 150l. so given up (t). And so, a promise by A. to B., to relinquish to him the benefit to be derived from a written agreement between A. and a third person, for the purchase of a freehold house; and an engagement by A. to permit B. to become the purchaser instead of A., constitute a sufficient consideration for B.'s promise to pay A. a sum of money (u). CH. II. s. 2. Requisites of Simple Contract (Considera tion). A promise to assign the subject of a mere expectancy, e.g., a Assignment of devise expected by the assignor, is a sufficient consideration to expectancy. support a promise to pay for it (x). The release of an equity of redemption (y), or of any other Release of equitable equitable interest (2), was always a good consideration for a claim. promise even before the Judicature Acts. promisee had But, wherever a promise is alleged to have been made in No consideraconsideration of the release of any interest, if it appear that the tion where promisee had, in fact, no interest which passed by the release, no interest. there will be no consideration for the promise alleged (a). A consideration which has for its object the prevention of Prevention of litigation. litigation, and the settlement of disputes between the parties, is also sufficient to support a promise. Thus, an agreement that an action pending, at the suit of the plaintiff against the defendant, should be settled, and all proceedings thereon stayed, and that the defendant should pay to the plaintiff a certain sum of money in respect of the costs and damages therein, is founded on a good consideration (b). And so it is in the ordinary case of a submission of differences to arbitration: the rule in such cases being, that the mutual promises are a good consideration (c). Moreover the giving up a suit or proceeding, instituted to try a question respecting which the law is doubtful, is a good consideration for a promise to pay a stipulated sum (d). (8) As to mode of assignment of chose in action, see "The Supreme Court of Judicature Act, 1873" (36 & 37 Vict. c. 66), s. 25, sub-s. (6). (t) Peate v. Dicken (1834), 1 Cr., M. & R. 422. (u) Price v. Seaman (in error) (1825), 4 B. & C. 525; (in C. P.) 2 Bing. 437. (c) Per Cur., Cook v. Field (1850), 15 Q. B. 460, 475. (y) Thorpe v. Thorpe (1702), 1 Ld. Raym. 662. (z) Wells v. Wells (1670), 1 Lev. 273. (a) Kaye v. Dutton (1844), 7 M. & G. 807. (b) Crowther v. Farrer (1850), 15 Q. B. 677. But an action will not lie on an undertaking contained in a judge's order, although such order be made by consent of the parties, and the undertaking be founded on a good consideration; Hookpayton v. Bussell (1854), 10 Exch. 24. (c) Com. Dig. Action upon the Case upon Assumpsit (A. 1), (B. 2), 9, Arbitrament (D.). (d) Longridge v. Dorville (1821), 5 B. & Ald. 117; and see Atlee v. Backhouse (1838), 3 M. & W. 633, 651; Cooper v. Parker (1855), 15 C. B. 822, Ex. Ch. CH. II. s. 2. Promise for Moral obligation. We have already mentioned some cases in which it has been held, that a mere promise to do an act at a future period, is a sufficient consideration for an engagement to the party making such promise. And there are other authorities which show that the mere promise, without performance, is, in such cases, a sufficient consideration, as it subjects the party to a charge and obligation which he would not otherwise have incurred (e). Thus the mere promise of a party to become partner in a firm, is a sufficient consideration for a promise to receive him as a partner (f). But, where the bare promise of the plaintiff is the only consideration for the promise of the defendant, it must appear that the promises were made by the parties mutually and concurrently (g). And so, upon the principle before explained, viz., that in the case of mutual promises, there must be a reciprocity of obligation,-it follows that, if the fact of the promise of one party not being binding on him, would leave the other party without a consideration for his promise, the engagement of that other party is not obligatory (h). Thus the promise of an agent, made on behalf of his principal, and which binds the principal only, is no consideration for a promise made to the agent; and therefore the agent cannot sue on it (i). An opinion at one time prevailed, that a mere moral obligation to pay a demand, or perform a duty, was a sufficient consideration for an express promise, although no legal liability existed at the time of making such promise (k). Considerable doubt, however, was from time to time expressed as to the accuracy of this opinion, and the extent to which, if at all, it ought to be received (1); and at length it came to be regarded as wholly incorrect: the unMoral obliga doubted rule of law at the present day being, that a mere moral consideration cannot support an action of contract (m). This has never been doubted since Eastwood v. Kenyon (n); in which it was held, that a pecuniary benefit voluntarily conferred by one person upon, and accepted by another, is not such a consideration as will tion, not suffi- Eastwood v. (e) See Nichols v. Raynbred, (1615), Hob. 88; Hebden v. Rutter (1664), 1 Sid. 180; Strangborow v. Warner (1584), 4 Leon. 3; Gower v. Capper (1597), Cro. El. 543. (f) M'Neil v. Reid (1832), 9 Bing. 68. (g) See Thornton v. Jenyns (1840), 1 Scott, N. R. 52, 74, 76. (h) Arnold v. Mayor of Poole (1842), 4 M. & G. 860, 896. (i) See Evans v. Hooper (1875), 1 Q. B. D. 45, C. A. () Per Lord Mansfield, C.J., and Buller, J., Hawkes v. Saunders (1775), Cowp. 289, 290, 294. (1) See note to Wennall v. Adney (1802), 3 B. & P. 247, 249; 6 R. R. 780, where a master was held not liable on an implied contract to pay for medical attendance on a servant who had met with an accident in his service. (m) Beaumont v. Reeve (1846), 8 Q. B. 483; and per Parke, B., Jennings v. Brown (1842), 9 M. & W. at p. 501. (n) Eastwood v. Kenyon (1840), 11 A. & E. 438. The plaintiff, when guardian of the defendant's wife, had borrowed money for the expenses of her estate. The wife on coming of age had assented to the loan, and the defendant, who had married her with notice of the assent, promised to pay it. |