14. 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 (i) Alliance Bank v. Broom, 2 Drew. well v. Williams, L. R., 2 C. P. & Sm. 289; 34 L. J., Ch. 256. Brace- 196. to where, at some time or other, a good or valuable considera- Way v. Sherry, 6 Cush. 238; Turner v. Chrisnian, 20 Ohio, 332; Warren v. Whitney, 24 Me. 561; Maxim v. Morse, 8 Mass. 127; Scouton v. Eislord, 7 Johns. 36; Erwin v. Saunders, 1 Cow. (N. Y.) 249; Shippey v. Henderson, 14 Johns. 178; Stafford v. Bacon, 25 Wend. 382; Goodsell v. Myers, 3 Wend. 479; Hoit v. Underhill, 10 N. H. 436; Wightman v. Coates, 15 Mass. 1; Bobo v. Hansell, 2 Bailey, 114; Robbins v. Útis, 1 Pick. (N. Y.) 370; Everson v. Carpenter, 17 Wend. (N. Y.) 419; Proctor v. Sears, 4 Allen (Mass.) 95; Martin v. Mayo, 10 Mass. 141; and note. Jennison v. Stafford, 1 Cush. 168; Rood v. Jones, 1 Doug. (Mich.) 188; Giles v. Ackles, 9 Barr. 247; Silvis v. Ely, 3 W & S. 420; Watson v. Randall, 20 Wend. 201; Ford v. Rehman, Wright, 439; Gilman v. Kibler, 5 Humph. 19; Colgin v. Henley, 6 Leigh. 85; Martin v. Black's Ex., 20 Ala. 309; McKinley v. Walkins, 13 Ill. 140; Russell v. Cook, 3 Hill. 504; Seaman v. Seaman, 12 Wend. 381; Stewart v. Ahrenfelt, 4 Den489. 189 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. (k) The abandonment and discontinuance of an action, brought to enforce a doubtful right or claim are a sufficient consideration for a promise; (?) and so is the compromise of a disputed claim made bonâ fide, even although it ultimately appears that the claim was wholly unfounded; (m)' and if there be an admitted debt due from one person to another, but disputes and doubts exist as to the exact amount due, the compromise and settlement of the disputes, and the abandonment of the claim to its full extent, form a sufficient consideration for a promise to pay a smaller sum than the amount claimed; (2) and, in the case of all unliquidated claims and demands, where the precise amount due has not been fixed and (A) Smith v. Algar, 1 B. & Ad. 603. 1 Roll. Abr. 24, pl. 33. Morton v. Burn, 7 Ad. & E. 19. Pilkington v. Green, 2 B. & P. 151. Sugars v. Brinkworth, 4 Campb. 46. () Longridge v. Dorville, 5 B. & Ald. 117. Stracey v. Bank of England, 4 M. & P. 639. Llewellyn v. Llewellyn, 15 L. J., Q. B. 4. But not 1 the abandonment of a suit, when the plaintiff knows and has admitted that he had no cause of action at all. Wade v. Simeon, 15 L. J., C. P. 114. Graham v. Johnson, Law Rep. 8 Eq. 30. (m) Callisher v. Bischoffsheim, L. R., 5 Q. B. 449; 39 L. J., Q. B. 181. (n) Edwards v. Baugh, 11 M. & W f41; 12 L. J., Exch. 427. A valid consideration may arise from the compromise of doubtful or conflicting claims known to be so. 1 Hilliard on Contracts, 263; Pilkin v. Noyes, 48 N. H.; Fullam v. Adams, 37 Vt. 391; Am. Law. Reg., Sept. 1869, p. 572. And this, although litigation has not commenced. I Hilliard on C., 263; Zane v. Zane, 6 Munf. (Va.) 406; Blacke v. Peek, 11 Vt. 483; Truett v. Chaplain, 4 Hawks, 178; Thalman v. Barbour, 5 Ind. 178. reduced to a certainty by the agreement of the parties, the payment or satisfaction of part of the demand is a good consideration for the discharge of the residue, (o) although litigation has not been actually commenced. () As a husband has the power of immediately enforcing in a joint action a claim of the wife which accrued to her before the marriage, forbearance by hin from so doing is a sufficient consideration to suppert a promise made to him alone. (2)2 15. Trust and confidence.-If a man is intrusted with, and receives money or goods on the faith of a promise to deal with them in a particular manner, an action can be maintained against him for any loss or injury that may be sustained by reason of a breach of (0) Wilkinson v. Byers, 1 Ad. & E. 113. Watters v. Smith, 2 B. & Ad. 889. (A) Cook v. Wright, 1 B. & S. 559: 30 L. J., Q. B. 321. (9) Rumsey v. George, 1 M. & S. 180. 'Id. But if the claim is absolutely and clearly unsustainable at law or in equity, it is otherwise. Gould v. Armstrong, 2 Hull. 266; New Hampshire Savings Bank v. Concord, 15 N. H. 119; Silvernail v. Cole, 12 Barb. (N. Y.) 685; Sharpe v Rodgers, 12 Minn. 174. It is not necessary that the forbearance should extend to an entire discharge; any delay which is real and not merely colorable will be sufficient. 1 Parsons on C. 442. In Sage v. Wilcox, 6 Conn. 81, the delay was one year. A general agreement to forbear all suit, will be considered as a perpetual forbearance. Clark v. Russel, 3 Watts, 213; Sidwell v. Evans, 1 Pa. St. 385. It is not necessary that the party who makes the promise, in consideration of the promise, shall have a direct interest in the suit forborne. 1 Parsons on C. 443. "But there must have been some party who could have been sued; and, in cases in which the person to be forborne is not mentioned, but the forbearance may be understood to be forbearance of whoever might be sued; the promise founded on such consideration is binding, if there be any person liable to suit, though the defendant himself is not liable." Id. "Where A. gave B. a receipt for $100," on account of carpenter's work done for him, the balance to be paid as soon as the amount is the promise, although the duty or trust may have been undertaken gratuitously.1 16. Inadequacy of consideration.-From the preceding remarks, it will be perceived that the consideration for a simple contract or promise need not be adequate in point of value. "If there be any consideration, the court will not weigh the extent of it." (r) It has no means of scrutinizing the varied hidden motives and reasons that may have influenced the parties, and induced them to enter into the contract, nor can it determine upon the prudence or propriety of the transaction. If parties choose to enter into unwise and improvident bargains, they must abide by the consequences of their own rashness and folly; () Ellenborough, C. J., 16 East, 372. Hitchcock v. Coker, 6 Ad. & E. 457. Starlyn v. Albany, Cro. Eliz. 67. 2 H. Bl. 312. Pinnell's Case, 5 Co 117, a 117 h ascertained, by agreement of ourselves, or by valuation. Held, that this was not a valid agreement to forbear suit, being without consideration. Reynolds v. Lofland, 3 Hav. (Del.) 366 Future forbearance by the depositors of a banker can form no consideration for an absolute agreement by guarantors to pay the depositors, made without reference to such forbearance. Steadman v. Guthrie, 4 Metc. (Ky.) 174. A creditor's agreement to forbear seizing property on attachment against his debtor, will not support a promise by a third person to pay the debt, if, at the time, the debtor has no interest in the property. Rood v. Jones, 1 Dougl. (Mich.) 188. A suit can not be maintained for a violation of a voluntary promise to continue a cause in court, and for taking judgment and execution contrary to such promise, unless it is stated and proved that there was a defense. Hunt v. Johnson, 23 Mo. 432. See further Lumberman's Bank v. Smith, 4 Pa. St. 504; Farmers' Bank v. Blair, 44 Barb. 641; Hill v. Buckminster, 5 Pick. (Mass.) 393, where the forberance consisted in withdrawing objections to the probate of a will. Mallory v. Gilett, 7 E. D. Smith, 412; Flemming v. Ramsey 46 Pa. 252. 'Parsons on Cont. I, 477. they have contracted for themselves, and the cour can not contract for them. (s)' 17. The promise.-Unilateral promises.-There is a large class of contracts in which there is no mutuality of engagement or liability. In the preceding cases, for example, where the consideration for the promise made by the defendant was the giving up or surrender of letters or securities, or the performance of work and labor, or the marrying the defendant's kinswoman, or the suspension or forbearance of legal proceedings, or the entrusting another with property, the plaintiff (s) But the consideration must be of some value. Smith v. Smith, 3 Leon. 83. I Rol. Abr. 23. See, as to the rule in equity, Townend v. Toker, L. 1 R., I Ch. 446. 458: 35 L. J., Ch. 608, 614. Cheale 7. Kenward, 3 De G. & J. 27; 27 L. J., Ch. 784. Shepard v. Rhodes, 7 R. I. 470. A slight consideration may sustain a heavy obligation. Hilliard on Cont. 250; Johr son v. Tiltes, 2 Hill (N. Y.) 606; Oakley v. Boorman, 21 Wenu. (N. Y.) 588; Thomas v. Quintard, 5 Duer (N. Y.) 80. But the rule, it seems, will not be enforced to the extent of working manifest hardship. Thus a contract solely for the exchange of unequal sums of money, the value of which is exactly fixed, as to pay $ico, in consideration of $1 (Shepard v Rhodes, 7 R. I. 470); or a promise to pay $600, upon a consideration of one cent (Schnell v. Nell, 17 Ind. 29); or where the thing constituting the contract is entirely useless (Rowe v. Blanchard, 18 Wis. 441; Clough v. Patrick, 37 Vt. 421; Whittle v. Skinner, 23 Id. 532; Sanborn v. French, 2 Fost. (N. HI.) 296; Harlan v. Harlan, 20 Pa. St. 303; Johnson v. Dorsery, 7 Gill. 269; Wormack v. Rodgers, 9 Geo. 60; Judge v. Wilkens, 19 Ala. 765; Milnes v. Cowley, 8 Price, 620; Mayor v. Williams, 6 Md. 235; Osgood v. Franklin, 2 Johns. Ch. (N. Y.) 23; Baxter v. Wales, 12 Mass. 365; Cabot v. Haskins, 3 Pick. (Mass.) 83; Callaghan v. Hallet, 1 Cai. (N. Y.) 104; Sweaney v. Hunter, Murphey, 181; Smith v. Bartholen.ew, Metc. 276; L'Amoreux v. Gould, 3 Seld. (N. Y.) 349; Warden v. Tucker, 7 Mass. 449. Freeman v. Boynton, Id. 453; May v. Coffin, 7 11. 347; Ross' Ex. v. McLauchlan's Adm., 7 Gratt. 86; Silvernail v. Coie, 12 Barb. 685; 1 Parsons on Cont. 436. |