Dunham v. Johnson

W. Allen, J. There was no evidence to sustain either count of the declaration. The work charged in the first count was not performed for the defendant; and there was no evidence of the consideration alleged in the second count,—forbearance to sue and attach the property of Chace; nor of the promise set forth in that count, — an unconditional promise to pay the debt of Chace. But we are of opinion that, upon the facts, the plaintiff could not recover upon any form of declaration. The plaintiff had been employed by Chace to make repairs upon a coasting vessel of which he was the master. The vessel was repaired in a home port, and there was no lien upon it unless under the statute. The vessel departed from the port of repairs, and the plaintiff filed no statement, and had no lien upon it under the statute. Gen. Sts. c. 151, §§ 12, 13. More than a year after that, the defendant became the owner of the vessel. After he had advertised it for sale by auction, the plaintiff demanded of the defendant payment for the work he had done upon it, and threatened to proceed to enforce by legal means the lien which he claimed to have upon the vessel, unless the defendant would pay or secure his claim. The defendant, to induce the plaintiff to forbear legal proceedings, promised to pay his claim, if it was one for which the plaintiff could maintain a lien which could be enforced against the vessel; and the plaintiff did forbear all legal proceedings. The consideration of the defendant’s promise was the forbearance to prosecute a claim for a lien upon the vessel, when there was no lien upon it. Whether forbearance to prosecute a groundless claim is sufficient consideration for a promise to pay money, or under what circumstances forbearance to sue a doubtful or contested demand will be sufficient, it is not necessary to consider. See Palfrey v. Portland, Saco & Portsmouth Railroad, 4 Allen, 55; 1 Chit. Cont. (11th Am. ed.) 35-41, 46, and cases cited. The promise of the defendant was “to pay the plaintiff’s claim, if it was a claim for which the plaintiff could maintain a lien which could be enforced in law against the vessel.” The plaintiff had no lien upon the vessel, and his claim was one for which he could not maintain a lien, and which the defendant did not promise to pay. New trial ordered.