Standard Supply Co. v. Person

Hoke, J., after stating tbe case? On a former appeal in this cause, the Court having awarded a new trial for the reasons heretofore stated and the cause having been referred, the letters above set out, with other correspondence between the parties, were introduced, and the witness J. E. Burr, among other things, testified as follows: “That the letter of 11 May, 1906, was in reply to Dr. Person’s letter to the company dated 10 May, 1906, and as a result of the letters referred to, the witness desisted from taking action with reference to collecting the account. That the plaintiff desisted from taking action to collect the account from Finch & Person because Dr. Person in his letter of 10 May led us to believe that he would see that our bill was paid as soon as the dry-kiln was in operation. That Dr. Person’s letter of 10 May, 1906, was the cause or consideration which induced us to desist from taking any action looking to the collection of this account. That no part of this account which accrued prior to 10 May, 1906, has been paid.” There was also admission by defendant on the hearing before the referee, “That the dry-kiln referred to in the letter of 10 May, 1906, was installed and put in operation 8 May> 1901, before the institution of the suit. Upon the testimony the referee, after finding the correspondence between the parties to be as stated, made additional findings of fact as follows: “That in consequence of the said letters to and from J. E. Person, the plaintiff forbore and desisted from taking action against the said firm of Finch & Person to collect the said account, as J. E. Person in and by his letter of 10 May, to plaintiff, led plaintiff to believe that he would see the said account of plaintiff against the said firm of Finch & Person paid as soon as the dry-kiln was in operation. And that said letter of 10 May, 1906, was the cause or consideration which induced the plaintiff to forbear and desist from taking any action to collect the said account owing it by Finch & Person. “7. That the dry-kiln, hereinbefore mentioned in the letter *461 from J. E. Person to plaintiff, dated. 10 May, 1906, was installed and put in operation before the institution of this action on 27 May, 1907. “8. That the amount of said account due 'and owing on 10 May, 1906, was $451.75, and that no part of the same has been paid, though demand for payment has been made on defendant J. E. Person by the plaintiff. “9. That no part of the judgment recovered against the said W. R. Person and S. H. Finch, partners trading as Pinch & Person, hereinbefore mentioned, has been paid.” And upon such facts we concur in his conclusion, “That there was a binding contract of guaranty on the part of the appellant J. E. Person, supported by a valuable and sufficient consideration, and that said appellant is lawfully due and owing the amount of the account accrued prior to the letter of 10 May, 1906.” The statute of frauds is not involved in the case, for the appellant’s letter of 10 May, 1906, contains a definite promise to pay as soon as the dry-kiln gets in operation, and since the notable decision of Miller v. Irvine, 18 N. C., 103, it has been well understood that in this State the consideration for a promise need not be contained in the writing in order to satisfy the requirements of the statute. And on the question of consideration, it is very generally held that a binding contract to forbear suit on a valid claim, for a definite time, or expressed in language that the law! would interpret as a reasonable time, constitutes a sufficient consideration for a guaranty. And an agreement with the promisor to forbear, followed by forbearance, for such time, would uphold the contract. Howe v. Taggart, 133 Mass., 284, and Robinson v. Gould, 65 Mass., 55. And by the weight of authority actual forbearance for such time without express agreement, but at the instance or request of the promisor, is sufficient. Lowe v. Weatherly, 20 N. C., 212-214; Strong v. Sheffield, 144 N. Y., 392; Crears v. Hunter, 19 L. R., Q. B. Div. (1887), 341; Clark on Contracts, 121 et seq.; Anson on Contracts, 97. "While the record in the former appeal left the matter in such *462 uncertainty that the Court did not feel justified in making a final decision of the case, and while there is some doubt even now as to whether the letter of plaintiff of date 11 May amounts to a distinct and definite agreement not to' sue, there is no longer room for construction that the correspondence, taken in connection with the full and definite statements of the witness Burr, establishes the proposition that there was actual forbearance to sue the debtors, and that this was at the instance and request of the appellant. We are of opinion, therefore, and so hold, that the testimony fully justified the findings of fact, and that on such findings there should be judgment entered against the guarantor for the amount ascertained to be due. His Honor below no doubt acted on his interpretation of the former opinion, which was expressed in terms somewhat positive in view of the fact that a new trial was to be awarded. There is error and on the facts established, judgment will be entered for the plaintiff. Reversed.