Hamaker v. Eberly

• Decision Date: 02 June 1810
• Citation: 4 Am.Dec. 477,2 Binn. 505
• Parties: HAMAKER v. EBERLEY.
• Court: Pennsylvania Supreme Court

2 Binn. 505

4 Am.Dec. 477

HAMAKER v. EBERLEY.

Supreme Court of Pennsylvania.

June 2, 1810

An agreement by a surety to forbear a suit against his principal, after he shall have paid the debt of the principal, is a good consideration to support a promise although at the time of the agreement, the surety had no cause of action against the principal.

The plaintiff declared, that he informed the defendant he was apprehensive that he should have to pay certain bonds in which he was joined with his principal, and that he would sue the principal; whereupon, in consideration that the plaintiff would refrain from suing, the defendant promised to save him harmless, & c. After verdict, this is to be intended an agreement to forbear suit after he had paid the money.

A promise to forbear in general, is to be understood a total and absolute forbearance.

ASSUMPSIT. The declaration contained three counts; but the verdict being rendered for the plaintiff, upon the second and third only the first is immaterial.

The third count was for money had and received. The second stated, that a certain discourse being had by and between the plaintiff and defendant, on the 1st of February 1799, of and concerning certain bonds & c. the plaintiff then and there informed the defendant that he was apprehensive he should lose a sum of money which he should have to pay for a certain Valentine Hummel to one Mordecai Lincoln, on account of four bonds, dated the 12th of May 1795, in which the plaintiff was bound to the said Lincoln, as security for the said Hummel, who was also bound as principal in the said bonds, and that he the plaintiff would sue the said Hummel on account of the said bonds; that thereupon the defendant requested the plaintiff not to sue the said Hummel, and then and there promised the plaintiff, in consideration that the plaintiff would refrain from so suing him, he the defendant would include the amount of the said bonds in a judgment to be entered for himself against the said Hummel, and would save the plaintiff harmless against the said bonds. The plaintiff then averred that he did refrain from suing the said Hummel, and that the defendant did include the amount of the said bonds, in a judgment which Hummel confessed to him. That the plaintiff was nevertheless sued by the said Lincoln on the said bonds, and was compelled to pay the debt due on them, to the amount of 265 l. on the 11th of December 1801, of which the defendant had notice; but that the defendant had not indemnified him, & c.

The cause was tried at a Circuit Court for Dauphin, in June 1808, before Mr. Justice Brackenridge, who overruled two motions by the defendant, one for a new trial, the other in arrest of judgment; from both which decisions the defendant appealed.

The question upon the former motion was of no importance.

Fisher and Montgomery for the defendant, argued for the motion in arrest of judgment, upon two grounds: 1. That the promise of the defendant set forth in the second count, was nudum pactum, even granting that a sufficient forbearance was stated. 2. That there was neither a definite nor total forbearance stated on the part of the plaintiff, but merely a forbearance for some time, which was no consideration.

1. No consideration is sufficient to support an assumpsit, unless it import some loss to the plaintiff, or some benefit to the defendant; Greenleaf v. Barker ^[a], 1 Pow. on Contr. 344., 1 Bac. Abr. 266., Com. on Contr. 430, 431. Forbearance to sue, where a man has a cause of action, is clearly a good consideration; but if he has no cause of action at the time, it is otherwise, because in such a case the promisee sustains no loss, and the promisor has no benefit. Barber v. Fox ^[b], Forth v. Stanton ^[c]. The second count states the consideration to be a forbearance by the plaintiff to sue his principal; whereas, by the face of the declaration, he could not sue him. He could have no cause of action, until he paid the debt of the principal; Tom v. Goodrich ^[a]; and the declaration states an apprehension that the plaintiff would have to pay it, which shews it was not done. Non constat that it ever would be done. The consideration was of course bad at the time of the promise, and the promise void; it was an engagement by the defendant without consideration, to pay Hummel's debt.

2. When forbearance of suit is the consideration of an assumpsit, it must be total and absolute, or for a particular time certain, or for a reasonable time, and so it must be stated, or it is ill. 1 Pow. on Contr. 353. The same principle in Lutwich v. Hussey ^[b], Philips v. Sackford ^[c], and 1 Selwyn's N. P. 43. The count merely states that the plaintiff would forbear, and the averment is that he did forbear, without shewing for what time; so that forbearance for an hour, would have been a performance on his part, which is no consideration.

Laird and Hopkins contrà. The promise not to sue is after verdict to be intended a promise not to sue when his cause of action should arise, and so indeed it must be understood from the words of the count. The plaintiff told the defendant he was afraid he should have to pay the money, and that he would sue the principal; that is, that he would sue him when he should have paid. The forbearance to sue must relate to that time, and is as good a consideration as a promise to forbear, when the cause of action has already accrued. But in addition to this, the count states that it was a part of the agreement, that the defendant should include the amount of the bonds in his judgment, and that he did include them; so that here was a clear loss to the plaintiff, as he never could sue the principal.

2. As to the forbearance, it is alleged generally, which is the same as total...