Hakes, Battershall & Weed v. Hotchkiss

The opinion of the court was delivered by Kellogg, J. It is urged, that there was no sufficient delivery of the writing, upon which the suit is founded, to render it operative against the defendant. We are unable to discover the grounds, upon which this objection is based. The writing being executed by the defendant, and for the benefit of the plaintiffs, and being in their possession, is prima facie evidence, that the same was duly delivered. And the testimony of Mr. Smith has no tendency to rebut the presumption. As the attorney of the plaintiffs, he went to Georgia, to secure their demand against Swan, Bates and Robinson, and for that purpose received the writing in question. The delivery of it to [235] Smith was a delivery to the plaintiffs. That the plaintiffs regarded it as an available paper is evident from the fact, that no farther measures were then taken, to enforce the payment of their demand against Swan, Bates and Robinson. The plaintiffs, relying upon the defendant’s security, abstained from prosecuting their demand against Swan, Bates and Robinson. There is nothing in the case, to sustain the objection, that the instrument was not properly delivered. It is farther said, that, inasmuch as there is no particular time stipulated for the forbearance, the instrument is void for want of consideration. This objection is untenable. “ If no agreement be made as to the length of time, during which the promissee will forbear, the law will presume, that he undertakes to forbear’ for a reasonable time; and this is sufficiently certain and is a good consideration.” Story on Agency 76. So an agreement to forbear, generally, to sue, is considered as a perpetual forbearance, and is therefore a good consideration. Story on Agency 76. Nor can the legal effect of the instrument be controlled by the declarations of the defendant, made at the time he executed it, or by the promise of Mr. Smith. For it is well settled by an uniform and unbroken current of authorities, that parol evidence is inadmissible for such purpose. The legal effect of the defendant’s promise and the extent of its operation must be determined by the instrument itself, and cannot be enlarged, abridged, varied, or contradicted by parol. There is no evidence, that the writing was procured by fraud, nor is it claimed. The court were therefore right in deciding, that the contract could not be controlled by the testimony of Mr. Smith, and in directing a verdict for the plaintiffs. The judgment of the county court is affirmed.