First Nat. Bank of Arlington v. Cecil

• Decision Date: 13 February 1893
• Citation: 23 Or. 58,32 P. 393
• Parties: FIRST NAT. BANK OF ARLINGTON v. CECIL.
• Court: Oregon Supreme Court

32 P. 393

23 Or. 58

FIRST NAT. BANK OF ARLINGTON v. CECIL.

Supreme Court of Oregon

February 13, 1893

On rehearing. Reversed.

For prior report, see 31 P. 61.

BEAN, J.

This cause was originally submitted on briefs, without an oral argument, and, as the brief of appellant was confined largely to a discussion of the points passed upon in the opinion filed, the alleged error of the trial court in giving and refusing certain instructions, although assigned as error and noted in the brief, escaped our attention, and was not considered. The contention for appellant is that, although an agreement by plaintiff to forbear instituting proceedings to set aside the conveyance from F. Cecil to defendant, and an actual forbearance by it, would be a good and sufficient consideration for the execution of the note by defendant, and that there was evidence from which the jury might find such an agreement, yet that question was not submitted to the jury, but the court instructed them, in effect, that mere forbearance by plaintiff, without an agreement to forbear would be a sufficient consideration for defendant's promise. The defendant requested the court to charge the jury that "the mere forbearance of plaintiff if you should find that there was such forbearance, to attack a conveyance of property from F. Cecil to the defendant without any agreement to forbear on the part of the plaintiff, would not be a sufficient consideration to sustain the contract in question, even though the plaintiff did forbear to attack such conveyance on account of the defendant having signed the note in question. This was refused, and the following given: "If you believe from the evidence that when the defendant signed the note sued upon he did so to induce the plaintiff not to attack the conveyance of property theretofore made by Frank Cecil to himself, then I charge you that there was a good and sufficient consideration for his so signing." From the instruction refused and the one given it is apparent the theory of the trial court was that an agreement on the part of plaintiff to forbear to attack the conveyance from Frank Cecil to defendant was not necessary to support the defendant's promise, but, if the note was signed by defendant to induce plaintiff to so forbear, it was a sufficient consideration. This was manifest error. 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...