Bowen v. Tipton

Irving, J., delivered the opinion of the Court. This suit was instituted upon an alleged promise of the appellant to the appellee to pay the appellee a certain debt of John Bowen, Jr., the appellant’s son, in consideration of the appellee’s forbearance of certain attachment proceedings about to be instituted by him. The first count in the declaration is in strict conformity with the form prescribed in Art. 75, section 22, sub-section 24, of the Code. The demurrer thereto, therefore, was properly overruled. The second count was somewhat more specific — 286 — as to the character of the claim of the plaintiff against the defendant, and of the suit about to be instituted, but alleged the promise of the defendant substantially as in the first count; and the abandonment of plaintiff’s attachment proceedings in consequence of said promise is distinctly averred, and the failure of defendant to pay, notwithstanding such abandonment is similarly averred ; so that there was no error in the overruling of the demurrer to the second count. In fact, the demurrer was not pressed by the appellant in this Court. To sustain the plaintiff’s claim against the defendant, it was necessary to prové a subsisting bona fide claim against John Bowen, Jr., which plaintiff was about to sue for, in order to lay a foundation for the defendant’s promise to pay it in consideration of forbearance. The existence of such claim being a thing to be found by the jury as the subject of forbearance, any evidence which would establish the claim as against John Bowen, Jr., in a suit against him, must, in the nature of things, be evidence in a suit of this hind to enforce a promise of payment in consideration of a forbearance to sue on such claim. No higher grade of evidence can he required than would be necessary against the debtor. The admissions of the debtor, therefore, that he did owe the plaintiff the amount claimed, or something in that neighborhood, was certainly evidence to go to the jury by way of establishing such claim. The plaintiff testified directly to the existence of the debt and also the admission thereof by the debtor. The first exception being to the admission of this as evidence was properly overruled. ° The plaintiff after testifying to the-amount John Bowen, Jr., owed him, proceeded to say, that he put the claim in the hands of an attorney to collect, and that “ he brought two securities and executed a bond.” This evidence is the subject of the second exception. In terms the exception is to all this evidence, but we suppose it was intended to — 287 — be confined to tbe statement, that the bond was executed, without the production of the bond. The fact that two securities were brought for the purpose of giving bond in attachment, was clearly competent; and whether the simple fact, that a bond was executed as proceeding from this witness -was admissible, is rendered wholly immaterial by the evidence of another witness, to the same fact at a subsequent stage, of the case, which was admitted without objection. The instructions granted and refused form the subject of the third exception. The first four prayers of the defendant in varied form, seek to take the case from the jury on the ground that there was no legally sufficient evidence to justify a verdict for the plaintiff. The Court was clearly right in rejecting them. The proof was, that John Bowen, Jr., owed the plaintiff and the claim was placed in the hands of an attorney for collection, who exhibited the claim both to John Bowen, Jr., and John Bowen, Sr., and informed them of the consequences of the suit which he was instructed to institute. After information of this claim, from the attorney having it in hand for suit, the appellant obtained a bill of sale from his son, John Bowen, J'r., for all his property. The appellee then went to see the appellant, and told him “he was going to send the sheriff up that day; that he was not going to stop for that bill of sale; it was all a fraud.” The appellant replied, “Don’t you do nothing; there is nothing done against you; you keep quiet.” Appellee said he did “ not know what else it was clone for on the top of this notice to John Bowen, Jr.; I am not able to lose the money,” &c. Appellant replied, “I know you have been a great friend of Johnny’s; nothing is done against you; you ought to know what it is done for; you keep quiet, and you will have your money; I guess I am worth it.” Appellee said he did not know whether he was or not, and then asked him to sign a note. Appellant declined, saying, “ no I — 288 — sign no notes, but you shall have your money.” Appellee then left him, and relying on that promise called immediately at his attorney’s and stopped the proceedings, and did not send the sheriff up, as was to be done that very day. In addition to the. testimony of the appellee, another witness, one William Stewart, testified that John Bowen, Sr., told him “his son John owed Tipton a good deal of money,” and said, “'I told him he should have his money, and he shall have it.” He also said, if he “ had let Tipton go on he would have' broken John up, and he wished he had let him do so.” The appellant denied these conversations, and offered evidence of a different character ; but the question raised by the prayers depends entirely upon whether, assuming the plaintiff’s evidence to be true, there was legally sufficient testimony to warrant a recovery by the plaintiff. We think there was, and that these prayers of the defendant were properly rejected. Mr. Addison, in his valuable work on Contracts, Vol. 1, p. 11,(8thUd.,) states the law to be as follows: “Forbearance of legal or equitable rights forms a good consideration for an undertaking, and will make it binding, and this, even though no actual benefit accrue to the party undertaking. If the plaintiff, for example, at the request of the defendant, forbears to institute legal proceedings, or discontinues legal proceedings already commenced, against a third party for the enforcement of a lawful claim or demand for any convenient or reasonable period, or suspends, or withdraws an execution, or a distress against the goods, or the person of such third party, the suspension or withdrawal of such execution or distress, or the forbearance of further proceedings, forms a sufficient consideration for a promise by the defendant, to pay money to the plaintiff, or to satisfy the full amount of his claim.” It is to be noted that this statement of the law makes the actual forbearance, pursuant to request, and in reliance — 289 — on the promise to pay for it accompanying the request, the consideration perfecting the contract or agreement, so as to bind the person so requesting, to pay for the forbearance accorded. Numerous authorities exist for this statement of the law, but we content ourselves with citing a few of them: Smith vs. Algar, 1 B. & Ad., 603; Morton vs. Burn & Vaux, 7 Ad. & Ell., 19; Jones vs. Ashburnham, 4 East, 463, &c. It was “ the forbearance,” this Court says, in Emerick vs. Coakley, 35 Md., 190, which constituted the consideration in that case. Without forbearance, in fact, there could be no consideration for the promise. A written agreement could be so constructed as to coerce forbearance ; but in parol agreements of this kind, the mutuality is effected by actually according the forbearance in pursuance of the request and the promise. This is the substance of Lord Denman’s decision in Morton vs. Burn & Vaux, 7 Ad. & Ell., 19. There it was objected that the contract declared on lacked mutuality, but this distinguished Judge overruled the objection, and said, unless the plaintiff did forbear, he could not sue on the defendant’s promise; and all that it was necessary to aver was that he had forborne, which was the condition to make the defendant answerable on his promise. Thus it appears that it is the act of forbearance which makes the consideration, when that forbearance is induced by the request of another, and the promise to do something in return for it. A bare agreement to forbear, without forbearance in pursuance of it, would give no right of action against a party asking for it and promising to pay for it. There would be nothing to pay for. In Chitty and Parsons it is laid down, that an agreement to forbear is a good consideration, and this is consistent with all the authorities, for, of course, there must bo a “ consensus,” or there is no contract to enforce. IIow that “consensus” is reached and the contract perfected is most philosophically stated in Anson on Contracts. — 290 — On page 74 of that work, (2nd Ed.) the law is thus laid down: “ When the consideration for a promise is an act or forbearance, the contract is said to be made upon consideration executed. This arises when either the offer or the acceptance is signified by one of the parties doing all that he is bound to do under the contract so created.” Again, on page 89, this author says, “ a contract arises upon executed consideration when one of the two parties has either in the act which amounts to a proposal, or the act which amounts to an acceptance, done all that he is bound to do under the contract, leaving an outstanding liability on one side only.” It is “a consideration executed upon request,” and completes the agreement. It is the doing what was requested to be done, upon promise of payment for doing it that makes the agreement. We think this is the generally accepted law; and it is certainly reasonable and tends to the promotion of right. The case of Mauler vs. Churchill, 127 Mass., 31, seems to teach a different doctrine ; but it introduces a refinement tending to defeat rather than to promote right. It is in conflict with all the other cases we have found as we understand them. The case before us clearly falls within the principles so-clearly stated by Mr. Anson, and appositely illustrates the law as he states it. The appellee had a bona fide claim against appellant’s son — a claim admitted by the son, and therefore enforceable. Having taken a bill of sale-for all his son’s property, he did not want his' title under the bill of sale attacked by an attachment which the appellee informed him he was about to sue out, in disregard of the bill of sale, which appellee charged to be fraudulent. Thereupon the appellant requested the appellee to do nothing, assuring him he should have his money, and that he was worth it. This was done in such a way and in such language that a jury might reasonably find it to be a promise to pay. Relying on it as such, appellee desisted,' abandoned his attachment, and the appellant was not dis — 291 — turbed in the possession of the property acquired by the bill of sale, as, without the request and promise, he would have been on that very day. The appellee did all he was requested to do, “ leaving the outstanding liability ” only on the side of the appellant, if the jury should find the facts as the evidence warranted. It thus appears to fulfil exactly all the requirements of the law of “ a consideration executed,” as already stated. Testing the plaintiff’s prayer by the law as we find it laid down, we think the criticisms upon it are not well founded. If the facts it enumerates are found by the jury, they are told that a sufficient consideration existed for the defendant’s promise if they find from the evidence that he did promise. They are not told they must find such promise from the facts; but if they found the facts stated, they were at liberty to find a sufficient consideration for the promise, or agreement, and if they found an agreement, then the plaintiff was entitled to recover. The whole question was left to the jury, even to the construction of the language used, and whether that amounted to a promise, and was intended as such. Being a contract wholly in parol this was their province. 1 Chitty on Contracts, 103 and 104. The objection that nothing was said in the prayer about forbearing a reasonable time, was unsubstantial, because the fact they were told to find was entire abandonment of the attachment. The greater certainly includes the less. If the declaration alleged a reasonable time as that which was to be accorded, entire abandonment of the writ was, at least, equal to reasonable delay. We can find no ground of reversal in the granting of this instruction. The fifth prayer of the defendant was properly rejected. By it the jury were to be instructed in making up their verdict not to regard or “ take into their consideration the testimony of William Stewart, as evidence tending to prove any contract on the part of the defendant to pay the debt of John Bowen, Jr., and for that purpose it was — 292 — wholly insufficient in law.” This prayer was grossly calculated to mislead the jury. If it did not contain all that was necessary, standing alone, to make an effective contract between the parties, it certainly did tend to prove that the defendant had promised to pay the plaintiff his claim, and by it had secured a stoppage of proceedings, which would have broken the son up. The evidence of the witness, Stewart, has heretofore been stated, and we will not repeat it. The jury would have understood the prayer as excluding that evidence altogether, and in fact it was erroneous in saying that Stewart’s testimony did not tend to prove a contract. It certainly tended to sustain the plaintiff’s statement on oath; and therefore tended to sustain a contract, and even standing alone it indicated that he had stopped the plaintiff from proceeding against the son and breaking him up hy promising to pay him, though it may not have been altogether sufficient by itself to fully establish the contract. But this we are not called on to decide. It was certainly corroborative, and the prayer was misleading. (Decided 20th November, 1885.) Judgment affirmed.