Manter v. Churchill

Lord, J. It is entirely clear that there was no evidence tending to hold the defendant as an original promisor. The only question is whether he was liable to pay the debt of his mother, Martha H. Churchill. His liability for that debt is not denied upon the ground that he did not promise in writing to pay it. The statute of frauds is not pleaded, the plaintiff contends that that defence is not open, because not pleaded, and the Chief Justice of the Superior Court states expressly that his finding for the defendant was not based upon the statute of frauds. He finds that the defendant promised to pay the debt; and the question presented for our consideration is, whether such promise was founded upon a sufficient consideration, or whether it was mere nudum pactum. Mere forbearance to sue is not a sufficient consideration for a promise to pay the debt of another. Mecorney v. Stanley, 8 Cush. 85. An agreement to forbear and actual forbearance under such agreement is a sufficient consideration. Robinson v. Gould, 11 Cush. 55. In this case, the presiding judge, although he finds there was forbearance to sue, and finds that the plaintiff was induced to forbear because of the request of the defendant, yet does not find that there was upon the part of the plaintiff any agreement to forbear. The plaintiff, therefore, was under no obligation, legal or moral, not to bring a suit; and he might at any moment have commenced an action against the mother of the defendant, without any cause for complaint on the part of the defendant that he had violated any promise or engagement to him; and although the forbearance was at the request of the defendant, and at his solicitation, still it is not found to have been by virtue of an agreement. There are cases in which the fact of forbearance, and the circumstances under which it exists, may be properly left to the jury as evidence tending to show a promise to forbear. Boyd v. Freize, 5 Gray, 553. But in this case, decided by the court without the intervention of a jury, it is to be presumed that the evidence did not satisfy the court of an agreement to forbear, and the court therefore found the promise to be without consideration, and that no action could be maintained upon it. Exceptions overruled.