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nitely (s), or for a short(t), or some(u), or a little time (v), will be held bad for uncertainty.
It must also be shown that the party who forbears, had a right which he could have exercised with effect against the party forborne ; for if he had no such right, there could be no detriment on the one hand, or benefit on the other (w). This right may be affected either from there being no debt or liability to be forborne or delayed, or (there being a debt) from its not being shown that there is any person whom the party promising to forbear, could sue; or from there being an incapacity to sue in the party promising to forbear ; thus, if A. and B. are bound jointly and severally in a bond, and the obligee releases A., B. is by operation of law discharged from the debt, as well as the obligor released; and if a third party afterwards promise to pay the obligee the money secured by the bond, provided the obligee give B. time for payment, such a promise is nudum pactum; for there being no debt, there is no consideration for the promise by such third party (x).
So where the plaintiff declared that A., since deceased, was indebted to him in a certain sum, and after his death, in consideration of the premises, and that he at the defendant's instance would forbear and give day of payment of the debt, (not stating to whom he was to forbear,) the defendant promised, &c.; it was held on demurrer to be no consideration for the promise, for unless there was some person whom the plaintiff could have sued for his debt,
(s) Philips v. Sackford, Cro. (w) See the observations of Lord Eliz. 455.
Kenyon, C. J., in Nerot v. Wal(t) Tolhurst v. Brickenden, Cro. lace, 3 T.R. 17; and of Lord Ellen
borough, C. J., in Jones v. Ash(u) See Tricket v. Mandlee, 1 burnham, 4 East, 455; and cases Sid. 45 ; 1 Roll. Abr. 23, pl. 26. infra.
(0) 1 Roll. Abr. 23, pl. 25; Sack- (2) Hammon v. Roll, March, ford v. Philips, 3 Bulstr. 207, cit.; 202 ; S. P. Rampston ànd Bowsee Tricket v. Mandlee, 1 Sid. 45. mer's Case, 3 Leon. 98, pl. 141.
(which did not appear,) his forbearance was no detriment to him (y). So where the declaration stated, that there were controversies between the plaintiff and the defendant for the profits of certain lands, which the defendant's father had taken in his life-time, and that the plaintiff intended to sue the defendant in Chancery, and that the defendant, in consideration that the plaintiff would stay his intended suit, promised, that if the plaintiff could prove that the father of the defendant took the profits, or had possession of the land under the title of the plaintiff's father, he would pay him for all the said profits, and then averred that the plaintiff had proved that the defendant's father had taken the profits under the title of the plaintiff's father ; it was held, that the promise was void, for it was not shown that the plaintiff was heir or executor of his father, and therefore Chancery would not give him any remedy (3). So where the plaintiff declared that the ancestor of the defendant became bound to him in a certain sum, and afterwards died, and that he demanded it of the defendant, being his heir, and that the defendant, in consideration that the plaintiff would forbear to sue him for such a time, promised to pay him, and the plaintiff then averred forbearance, and that the defendant had not paid the money, and it was held, that the action would not lie, since it was not shown that the heir was expressly bound in the bond, and the consideration was not to forbear to sue generally, but to stay a suit against the defendant whom he could not sue(a): but where S., together with P., was bound to Ć. for the
proper debt of P., and S. paid the money, and P. died,
(y) Jones v. Ashburnham, 4 East, 455.
(2) Toley and Windham's Case, 2 Leon. 105, pl. 133 ; S. C. nom.
Tooley v. Windham, Cro. Eliz, 206.
(a) Barber v. Fox, 1 Ventr. 159; S. C. 2 Saund. 136.
and made E. his executor, and E., in consideration that S. would forbear to sue him until such a time, promised to pay him ; it was held a sufficient consideration to support the promise, for the executor was liable in equity (b).
And again, where the plaintiff declared that J. S. owed him 201. for the arrears of an annuity, and that the defendant was receiver of the rents of J. S., and appointed by J. S. to pay the plaintiff his 201., and that the defendant, in consideration that the plaintiff would forbear him to such a time, promised he would pay him, if he lived and continued receiver, and a verdict having been found for the plaintiff, it was moved, in arrest of judgment, that it did not appear that the defendant had at the time of the promise any of the rents of J. S. in his hands, and then the forbearing of him could be no consideration, because not liable to any suit: but the Court held that it being shown that he was receiver at the time of the promise, and averred that he so continued, it was a strong intendment that he had assets in his hands, especially after a verdict (c). So in Willatts v. Kennedy (d), it appeared that the plaintiff had been appointed by the Court of Chancery receiver of the debts of a certain firm, and that in consideration that the plaintiff, as such receiver, would give to one of the debtors of such firm two months' time to pay his debt, the defendant promised to pay, in case the debtor should omit to do so within that time: the debtor failed to pay the debt within the time limited, and the plaintiff obtained a verdict. Upon a motion made in arrest of judgment, the question was, whether the plaintiff had authority to contract and sue for the debts of the firm, and, as incidental to that authority, to suspend
(6) Scott v. Stevens, 1 sid. 89.
(c) Davison v. Haslip, 1 Ventr. 152; S. C. nom. Davison v. Heslop,
2 Lev. 20.
(d) 8 Bing. 5.
payment according to a reasonable discretion, and the Court thought that the jury might reasonably presume, that the plaintiff had authority to do that which the defendant requested him to do; that after verdict, the plaintiff was sufficiently connected with the cause of action, and there was no ground for considering him a stranger, and that a reasonable discretion in granting forbearance to a debtor was not incompatible with his duty as receiver.
II. What is a sufficient statement of the consideration in writing.
By the common law of England, a consideration has at all times been necessary to make a contract not under seal binding; and to render valid a promise by one person, to be answerable for the debt, default, or miscarriage of another, the Statute of Frauds requires, that both the promise, and the inducement or consideration for that promise, shall be stated in writing (e), and parol evidence of such consideration is inadmissible.
The written agreement on which the plaintiff declares, (and if there are two or more distinct writings which can be connected or taken together, the whole forming but one transaction, they may constitute a “memorandum of agreement” within the Statute of Frauds,) (S), must either state the consideration in express terms on the face of the instrument(8), or the consideration must by reasonable construction be collected or implied from the whole tenor of the writing ; not as a matter of conjecture merely, but with a fair degree of certainty (h).
(e) Wain v. Warlters, 5 East, 10; Saunders v. Wakefield, 4 B. & Ald. 595; Clancy v. Piggott, 2 Ad. & Ell. 473; Jenkins v. Reynolds, 3 Brod. & B. 14 ; S. C. 6 J. B. Moo. 86; Hawes v. Armstrong, 1 Bing. N. C. 761; Morley v. Boothby, 3 Bing. 107; S.C.10 J.B.Moo.395; James v. Williams, 5 B. & Ad. 1109; Cole v. Dyer, i Cr. & J. 461; S. C. i Tyrw. 304.
(f) Coe v. Duffield, 7 J. B. Moo.
252 ; Stead v. Liddard, i Bing. 196; S. C. 8 J. B. Moo. 2; Dobell v. Hutchinson, 3 Ad. & Ell. 355 ; Allen v. Bennet, 3 Taunt. 169; Western v. Russell, 3 Ves. & B. 187; Tawney v. Crowther, 3 Bro. C.C. 318; Saunderson v. Jackson, 2 Bos. & P. 238 ; and see Sandi
Marsh, 2 B. & Ald. 673. (g) Stadt v. Lill, 9 East, 348 ; S. C. nom. Stapp v. Lill, i Camp. 242.
If it is doubtful whether the consideration relates to a past or future transaction (i), or if several, or even two distinct considerations, may with equal propriety be inferred as the inducement for the surety's engagement (j), the writing is not taken out of the operation of the Statute of Frauds, and consequently can give no right of action to the creditor. The written
agreement may either have expressed upon it, 1st. A good consideration ; 2ndly. No consideration, or no sufficient consideration; or, 3rdly. A consideration which is in part sufficient, and in part insufficient.
With respect to the last of these branches, it may be observed the rule of law is, that if the promise is entire, and is void in part, it is void altogether, and the plaintiff consequently cannot recover upon such an agreement(k); but if the good part can be separated from the bad part, and the declaration is so framed as to meet the proof of that part of the contract which is good, such part will be sustained (1)(6).
The following are some of the cases of guarantees which have been decided with reference to the
(h) See Hawes v. Armstrong, 1 Bing. N. C. 761.
(0) Jenkins v. Reynolds, 3 Brod. & B. 14; S. C. 6 J. B. Moo. 86; Morley v. Boothby, 3 Bing. 107; S. C. 10 J. B. Moo. 395.
(1) Cole v. Dyer, 1 Cr. & J. 461;
S. C. i Tyrw. 304.
(k) Thomas v. Williams, 10 B. & Cress. 664 ; Lexington v. Clarke, 2 Ventr. 223; Chater v. Beckett, 7 T. R. 201.
(1) Wood v. Benson, 2 Cr. & J. 94.
(6) So if the promise is in part original and in part collateral, and the contract is not reduced into writing, although the party to whom the promise has been given cannot recover in respect of that part of the promise which is collateral, he may, nevertheless, recover in respect of that part which is an original promise, if it can be separated from that part which is collateral.(Lyde v. Higgins, 1 Smith,