Hat v. Fortier

• Decision Date: 22 November 1917
• Citation: 102 A. 294,116 Me. 455
• Parties: HAT. v. FORTIER.
• Court: Maine Supreme Court

102 A. 294

116 Me. 455

HAT.

v. FORTIER.

Supreme Judicial Court of Maine.

Nov. 22, 1917.

Case Reserved from Superior Court, Cumberland County.

Action by George G. Hay against Mary A. Fortier. Case reserved. Judgment for plaintiff.

Argued before CORNISH, C. J., and SPEAR, KING, BIRD, HANSON, and MADIGAN, JJ.

Jacob H. Berman, of Portland, and Benjamin L. Berman, of Lewiston, for plaintiff.

F. W. Clair, of Waterville, for defendant.

KING, J. The case made by the agreed statement is this: The defendant became a surety on a 15-day bond given by one Henry H. Sawyer to the plaintiff. The conditions of the bond were not complied with, and the defendant was notified of her liability under the bond and requested to make payment thereof. On February 4, 1915, the defendant's attorney wrote the attorney of the plaintiff as follows:

"I have seen Mrs. Fortier, who says it will be a great hardship to pay this entire amount at the present time as the other signers are worthless. She suggests * * * that she will pay you $100 next week, if the papers are regular, and settle the balance by payments, the whole bill to be paid before your April term of court. * * *"

To that the plaintiff, through his attorney, replied sending copies of the papers and saying:

"I am willing to accept $100 on account, providing you send same to me immediately and the balance on or before the first Tuesday of April. * * *"

The defendant paid the $100 forthwith, but no more. The plaintiff waited till long after the first Tuesday of April, and on June 1, 1915, brought an action of debt on the bond against the principal and all the sureties. Mrs. Fortier answered to that action at the return term thereof, and at a subsequent term, on November 3, 1915 by agreement, that action was "discontinued without costs and without prejudice," the counsel of the respective parties signing the docket entry to that effect. Why that action was thus discontinued does not appear in this case. On the following day, November 4, 1915, this action was brought against Mrs. Fortier, based upon a breach of her alleged special promise to pay the balance due under the bond before the April term of court, as stated in the correspondence referred to. The declaration is not made a part of the case, but the parties stipulate that it "is in due form." The defense is that the alleged promise on which the action is based was without a legal consideration and is therefore nonenforceable.

We think the agreed statement justifies the conclusion, that the defendant promised to pay at once $100, and the balance due under the bond before the April term of court, provided the plaintiff would forbear action on the bond, and that the plaintiff on his part, in consideration of such part payment at once, and the promise to pay the balance on or before the time specified, agreed to forbear, and did in fact forbear, action on the bond until after the time specified. And a promise to forbear and give time for the payment of a debt followed by actual forbearance for the time specified or for a reasonable time when no definite time is named, is certainly a sufficient consideration for a promise to pay the debt. Moore v. McKenney, 83 Me. SO, 90, 21 Atl. 749, 23 Am. St. Rep. 753.

On the other hand, it is obvious that the defendant by her special promise did not agree to do anything that she was not then legally bound to do. Her liability under the bond was then due and payable. She might then have been required to pay it all...