Davies v. Rea

Mr. Justice Burnett delivered the opinion of the court. The defendants contend that the writing which they signed is not sufficient to charge them under the statute of frauds embodied in Section 808, L. O. L. As applicable to this case the statute reads thus: “In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law: * * 2. An agreement to answer for the debt, default, or miscarriage of another. * * ” The paper recited that it was executed “in consideration of the extension of the time for the collection [651] of said sum until May 22,1913.” The defendants rely upon First Nat. Bank v. Cecil, 23 Or. 62 (31 Pac. 61, 32 Pac. 393), holding that: “An agreement by a creditor to forbear prosecuting his claim, and an actual forbearance by him, is a good consideration to sustain a promise of a third person to pay the claim; * * but a mere forbearance without such promise is not. * * And this is so although the act of forbearance was induced by the defendant’s promise.” The teaching of that case is, in effect, that without a supporting contract to characterize it, pure forbearance could not be distinguished from neglect of the promisee to compel payment. Delay only, if nothing else is shown, does not alter the situation or the rights or obligations of the parties. But in this juncture that is not by the mark. The consideration was the extension of time. This implies an affirmative act on the part of the holder of the note, and is not the bare negative of forbearance or procrastination. This positive act of the plaintiffs is expressed in the agreement which the defendants made. Their argument would be apropos if, in fact, the plaintiffs had violated the stipulation and had sued on the principal obligation before the extension had expired for then the stated consideration would have failed. Expressing, as it does, the consideration, the writing subscribed by the parties sought to be charged is sufficient within the statute of frauds. The judgment is affirmed. Affirmed. Mr. Chief Justice Moore, Mr; Justice McBride and Mr. Justice Benson concur.