Henderson v. Kendrick

• Decision Date: 06 July 1921
• Citation: 82 Fla. 110,89 So. 635
• Parties: HENDERSON v. KENDRICK et al.
• Court: Florida Supreme Court

89 So. 635

82 Fla. 110

HENDERSON v. KENDRICK et al.

Florida Supreme Court

July 6, 1921

Rehearing Denied Oct. 20, 1921.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by John A. Henderson against W. H. Kendrick and another. Demurrer to declaration overruled, plaintiff's demurrer to defendants' pleas overruled, judgment for defendants and plaintiff brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Forbearance held good consideration in matter of disputed claim. In an agreement to compromise a disputed claim, forbearance to sue in respect of the claim is a good consideration.

Forbearance to sue is a good consideration. When a person bona fide believes he has a fair chance of success in a suit against another, his forbearance to sue constitutes a good consideration.

Agreement to pay money for forbearance to levy attachment and advertise property held valid. Where a person has an immediate right to have an execution levied and defendant's property advertised for sale, an agreement to pay a sum of money for forbearance to levy an attachment and advertise property for sale is a valid one.

Detriment constituting consideration for promise need not be an actual loss. The detriment which will constitute a consideration for a promise need not be an actual loss to the promisee. It is sufficient if he does something that he is not legally bound to do.

Judgment holder's agreement to forbear execution is a valid consideration. An agreement to pay a sum of money if the holder of a judgment will forbear to have execution levied and advertise the property of the defendant for sale is an agreement for the benefit of the promisor, and is a detriment to the promisee, and constitutes a valid claim against the promisor.

COUNSEL

Shackleford & Shackleford and Shackleford & Parks all of Tampa, for plaintiff in error.

Lunsford & Whitaker, of Tampa, for defendants in error.

OPINION

BROWNE C.J.

John A Henderson, the plaintiff in error, held a judgment against W. H. Kendrick and G. N. Benjamin, and was about to have execution levied upon their property and advertise it for sale on the first Monday in July, 1919; to prevent this, the defendants promised in writing that----

'In consideration of your not having the execution which has been issued on said judgment levied upon our property and advertising the same for sale on the first Monday in July, A. D. 1919, we hereby promise to pay you the amount of said judgment and the cost of court by the 20th day of June, A. D. 1919. The amount of said judgment is $4,214.02 exclusive of the court costs.'

The declaration set out substantially the recovery of the judgment for $4,214.02, upon which execution had been issued, and that the sheriff was proceeding to have same levied upon property of the defendants, and to have the property advertised; that in consideration that the plaintiff would stay all further proceedings,

'and would forbear to have the execution levied upon the property of the defendants, and to advertise the same for sale on the first Monday in July, A. D. 1919, the defendants promised the plaintiff to pay to Shackleford & Shackleford, his attorneys, the amount of the judgment, together with the costs of court, by the 20th day of June, A. D. 1919; that the plaintiff forebore to have the execution levied upon the property of the defendants and advertised for sale on the first Monday in July, A. D. 1919, and that all conditions precedent have been performed, and all events have happened, and periods of time have elapsed to entitle the plaintiff to maintain this action; yet the defendants have not paid the amount of said judgment, and costs of court, or any part thereof.'

A demurrer to the declaration was overruled, and the defendants filed four pleas, to which the plaintiff demurred and filed a motion to strike. The demurrer was overruled, and the motion to strike denied.

The defendant in error contends that the declaration failed to state a cause of action, and that, the plaintiff having interposed a demurrer to the pleas, it opened the question of the sufficiency of the declaration, and, if the declaration is bad, the judgment of the lower court should be affirmed. We dispose of this contention by finding that the declaration states a complete cause of action, and in all material matters following the form laid down in 2 Chitty on Pleadings, 231.

Without going further into the details of the pleading, the question presented by the assignments of error based upon the judgment of the court overruling the demurrer to the pleas, and denying the motion to strike them, is, Can an action be maintained to recover on a contract whereby the defendant obligated himself to pay a stipulated sum to stay for a given period all further proceedings in an action, and forbear to levy execution upon the property of the defendants and advertise the same for sale?

The contract for forbearance which is the basis of this suit was not a new promise to pay an old debt, but an independent contract whereby the defendants obligated themselves to pay a stipulated sum to avoid having their property levied on by the sheriff and advertised for sale.

The advertisement of property for sale under an execution may work serious injury to the owners of the property, perhaps greater than the amount of the judgment which the property is about to be sold to satisfy. In the case of a business house it might result in loss of credit, precipitate claims of...