Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Opinion of the Court--Shattuck, J.

the last term, in Holladay v. Patterson (ante, p. 177), and is no longer here an open question, and if this case does not stand upon some other foundation than that subscription, the judgment below should not be disturbed.

Counsel for the appellant, however, ask a reversal upon two aspects of the case-that the facts detailed in the pleadings show the consideration to have been a compromise of a doubtful claim, and that forbearance to sue the original claim was sufficient consideration to support the new promise.

If the facts pleaded presented a case of compromise,\ within the rule of the authorities cited, a reversal ought to be had, notwithstanding this Court have, since the execution of the note, declared (Holladay v. Patterson) that the contract of subscription was invalid; for when this note was made, the questions raised and decided in Holladay v. Patterson had not been settled. The decisions on the subject by the courts of other States were far from uniform, professional opinion in our own State was divided, and as it appears in that very case the decision of our Court was not without dissent. If, then, in this state of the law, the parties had disagreed as to the facts and the law relating to the subscription, and there had been between them an actual controversy and difficulty, and they had settled it by a mutual agreement to waive questions of law and fact relating to the subscription, and upon mutual concession had entered into the new contract, I should think it ought to be sustained and a recovery had upon the note, upon the authority of the cases cited (13 Ill. 143; 3 Hill, 504), which hold that "the compromise of a doubtful claim is a sufficient consideration for a promise, and it is immaterial on whose side the right ultimately turned out to be, as it must always be on one side or the other," and that such a compromise may involve as well questions of law as of fact. But these pleadings do not present such a case. It is simply alleged that the subscription was overdue, and that payment was demanded and suit threatened, and thereupon it was agreed to extend the time of payment, and the note was given for the amount a mere forbearance, nothing more.

n

Opinion of the Court-Shattuck, J.

In order to render the agreement to forbear and the forbearance of a claim a sufficient consideration for a new promise, it is essential that the demand forborne should be sustainable at law or in equity, and the consideration will fail if the demand is without foundation. (Chitty on Contracts, pp. 35 and 36, and notes; 3 Pick. 83.)

The facts pleaded and the decision of this Court in Holladay v. Patterson, bring this case within this rule of Chitty, and appellant's argument on this point fails.

Appellant insists further that this case is upon the same footing as Smith v. Case, decided by this Court (2 Or. 190), or at least is like cases cited in the books where void or voidable contracts have beed ratified. But there is a distinction which must be kept clearly in view. In this case, the invalidity attaches to the very nature and subjectmatter of the original transaction, and is not removed by change of time or person, while in Smith v. Case the invalidity of the original contract grew out of the time when it was made (on Sunday). The defendant had received so much money of plaintiff on Sunday, and on the same day had given his note for it, a transaction forbidden on that day, but valid on any other day. Afterwards, on a work day, the defendant acknowledged the receipt of the money and the giving of the note, and promised to pay the money. Most of the other cases cited by counsel are those where a party under some disability, such as coverture, infancy or duress, has entered into a contract which could not be enforced at law, but has sanctioned and ratified the contract after the disability had ceased. In these cases, the subject-matter of the transactions and the consideration of the agreements were lawful, and the disability was only personal and temporary, and did not exist when the new promise was made. In the case before us, the new promise was only a continuance and in furtherance of the original transaction, and must stand or fall with it.

The judgment must be affirmed.

Opinion of the Court-Prim, J.

NEWELL RUSSELL, RESPONDENT, v. J. M. SWIFT, APPELLANT.

PLEADING-CONTRACT FOR THE PAYMENT OF GOLD COIN NEED NOT BE ALLEGED TO BE IN WRITING.-Our statute contemplates that in order to obtain a judgment for gold coin the contract should be in writing; but under the rules of pleading it is not necessary the contract should be averred to be in writing, but if questioned or denied it must be proved on the trial by the writing.

APPEAL from Baker County.

This was an action to recover an alleged balance of two hundred and twelve dollars on an account for labor performed, for which, it is alleged in the complaint, the defendant promised to pay plaintiff at the rate of thirty-five dollars per month "in gold coin," and the further sum of eighteen dollars, alleged to be due the plaintiff on account of money received by defendant and to his use from plaintiff. The answer alleges that before the commencement of the action the plaintiff accepted from the defendant sixty-four dollars and five cents in full satisfaction and discharge of the several alleged promises and items of indebtedness set forth in the complaint.

The reply denies the satisfaction and discharge set up in the answer.

A jury having been waived, the questions of fact presented in the pleadings were tried by the court and determined in plaintiff's favor. Judgment was entered upon these findings for plaintiff for two hundred and thirty dollars in gold coin, from which judgment this appeal is taken.

S. F. Chadwick, for Respondent.

Knight & Lord, for Appellant.

By the Court, PRIM, J.:

It is claimed by appellant that a judgment for gold coin can only be rendered on a written contract to pay such particular kind of money and that it should be averred in the complaint that the contract was in writing. Our

Opinion of the Court-Prim, J.

* *

statute provides "that the several courts, within this State, in giving judgment * * * on a written contract, for the payment of gold coin, * shall, if either party require it, adjudge that the principal sum, so contracted, and the interest thereon, shall be paid in the kind of money so specified in said contract." (Mis. Laws, ch. 54, 2 1.)

In this cause it is alleged in the complaint that the defendant promised to pay gold coin without averring that the contract was in writing. This allegation is not denied. The only defense made in the answer is payment and satisfaction. And this defense not having been made out, and the allegations of the complaint not being denied by the answer, they are to be taken as true, and the court below so found.

The judgment is for coin, and the question arises, Does the failure to aver that the contract was in writing render the complaint insufficient to sustain such judgment? To this we answer, that in cases of this kind it is not necessary to allege in the complaint that the contract was in writing; but if it is questioned or denied, it must be proved on the trial by the writing. (Taylor v. Patterson, ante, p. 121.)

The principle laid down in that case, we think, is decisive of this one. Bonham, J., who delivered the opinion of the court, said: "Although our statute requires (or at least contemplates) that a contract for the payment of gold coin, to be valid, must be in writing, yet the rules of pleading in such cases do not require the complaint to aver that such agreement was in writing. The statute above referred to, and commonly known as the 'Specific Contract Act,' does not operate to change the rule of pleading in actions to recover gold coin, but only requires a different quality of evidence." The authorities cited fully sustain the decision announced.

The majority of the court are of the opinion the judgment should be affirmed.

Mr. Chief Justice BONHAM dissented.

Statement of Facts.

JOSEPH KNOTT, RESPONDENT, v. JAMES B. AND ELIZ-
ABETH STEPHENS, APPELLANTS.

A SUIT BY ONE OBLIGEE IS NOT A BAR TO A SUBSEQUENT SUIT TO ENFORCE
THE RIGHTS OF BOTH OBLIGEES.-A suit brought by the assignee of one
of two obligees, in a bond for the conveyance of real estate, is not a bar
to a subsequent suit for specific performance between the same parties,
and concerning the same land, commenced after the plaintiff in the
former suit had acquired the interest in the land of both obligees in the
bond.
TIME-ESSENCE OF CONTRACT, WHEN.-Time is not of the essence of a con-

tract to convey land at a future day, unless the language of the con-
tract clearly indicates that it was so intended by the parties.
IDEM. Where, by the terms of the contract, time is not made material,
either party may enforce performance by executing, or tendering the
execution of the contract on his part, and demanding the same of the
opposite party.

APPEAL from Multnomah County.

On the 10th day of March, 1866, the defendant, James B. Stephens, contracted with Joseph Long and William Foster to sell them block No. 23, in the city of East Portland, for the agreed price of six hundred dollars in coin, of which sum one hundred dollars was then paid; and said Long and Foster executed and delivered to said Stephens their joint and several promissory note for the payment of the remaining five hundred dollars two years after date, with interest at one per cent. per month.

On the same day (March 10, 1866), James B. and his wife, Elizabeth Stephens, executed and delivered to said Long and Foster, a bond for a deed to said block No. 23, in the penal sum of five hundred dollars, the conditions of which read as follows: "Now, therefore, on the payment of said note ($500), the said James B. and Elizabeth Stephens, their heirs, executors or administrators, are to make, execute and deliver, or cause to be, a good and sufficient warranty deed, in fee-simple, to the following described * * real estate * * * to wit, block No. 23, in the city of East Portland, in Multnomah County, Oregon." By the terms of this bond the obligors therein

*

[blocks in formation]
« ΠροηγούμενηΣυνέχεια »