Lewis v. Siegman

• Citation: 296 P. 51,135 Or. 660
• Parties: LEWIS v. SIEGMAN. [a1]
• Decision Date: 03 March 1931
• Court: Supreme Court of Oregon

296 P. 51

135 Or. 660

LEWIS v. SIEGMAN. ^[a1]

Supreme Court of Oregon

March 3, 1931

Department 1.

Appeal from Circuit Court, Jefferson County; T. E. J. Duffy, Judge.

Action by Olive M. Lewis, as administratrix of the estate of Mary N Pitzer, deceased, against Mary Siegman, as administratrix of the estate of Antone Fogle, deceased. Judgment for plaintiff and defendant appeals.

Reversed and remanded, with directions.

M. R. Elliott, of Prineville, for appellant.

Abe Eugene Rosenberg, of Portland (Coan & Rosenberg, of Portland and Bernard Ramsey, of Bend, on the brief), for respondent.

RAND J.

In this action plaintiff, as administratrix of the estate of Mary H Pitzer, deceased, seeks to recover judgment against the defendant as executrix of the last will and testament of Antone Fogle, deceased, for the reasonable value of services alleged to have been performed by plaintiff's intestate for said Fogle at his special instance and request between October 27, 1897, and August 3, 1921, the day on which plaintiff's intestate died. The complaint, after alleging that the services were continuously performed between said dates at the special instance and request of Fogle, that they were of the reasonable value of $100 per month, and that no part thereof had been paid, and that plaintiff, as administratrix, had demanded payment thereof of Fogle, and that Fogle had failed and neglected to pay the same, or any part thereof, then alleged:

"That during the month of August, 1923, by order of court, the said Antone Fogle entered into a parol agreement with Olive M. Lewis, as administratrix of the estate of Mary H. Pitzer, deceased, whereby and whereunder the said Antone Fogle agreed in consideration of the services theretofore rendered to him by Mary H. Pitzer, and for the further consideration that the said Olive M. Lewis as administratrix of the estate of Mary H. Pitzer, deceased, forbear the institution of suit against him for the value of services theretofore rendered to him by the said Mary H. Pitzer, deceased, as hereinbefore set out, to devise real property in his will to the heirs of Mary H. Pitzer, to-wit: Olive M. Lewis, Harry T. Pitzer and Prentice Pitzer, sufficient to satisfy any and all claims that Olive M. Lewis as administratrix of the estate of Mary H. Pitzer, had against him, the said Antone Fogle, by reason of the services theretofore rendered to him by the said Mary H. Pitzer."

Following said allegation, the complaint alleges that Fogle died on January 26, 1928, leaving a last will which contained no devise or bequest of any property to the heirs of Mary H. Pitzer, deceased; that plaintiff, as administratrix, presented to defendant in her representative capacity a duly verified claim for $28,500 for said services, that said claim was rejected, and that no part thereof has ever been paid, and contains a demand for judgment in said sum.

To this complaint defendant demurred upon the ground that it failed to state facts sufficient to constitute a cause of action, and also upon the ground that the action was not commenced within the time limited by the Code. The demurrer was overruled, and defendant answered, denying generally the material allegations of the complaint. Upon the issue thus joined, the cause was tried to a jury, and plaintiff had verdict and judgment for $6,000, and defendant has appealed.

It will be seen from an examination of the complaint that there is no allegation of any promise upon plaintiff's part given in consideration of the alleged promise of Fogle to devise real property to the Pitzer heirs that plaintiff would herself forbear to prosecute the claim, nor is there any allegation in the complaint that plaintiff herself performed the alleged contract upon her part. In the absence of such allegations, there was no cause of action stated in the complaint.

In First National Bank v. Cecil, 23 Or. 58, 31 P. 61, 32 P. 393, an action to recover upon a promissory note alleged to have been given as the consideration for the bank's promise to not institute proceedings to contest a conveyance made to the defendant by his brother, the judgment was reversed because of an error committed by the court in instructing the jury upon the very point involved here. The defendant in that action had requested an instruction that the mere forbearance of plaintiff to attack the conveyance without any agreement upon the part of the plaintiff that it would forbear the commencement of proceedings to attack the conveyance would not be a sufficient consideration to sustain the note sued on, even though the plaintiff did in fact forbear on account of defendant's having signed the note. The court refused to give the instruction requested, and, in effect, charged the jury that, if the jury believed from the evidence that, when the defendant signed the note sued upon, he did so to induce the plaintiff not to attack the conveyance, that would constitute a good and sufficient consideration for the note signed by him. In reversing the judgment, the court said:

"* * * 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 a third person to pay the claim, ( Robinson v. Gould, 11 Cush. [ Mass.] 55, and Bish. Cont. § 63;) but a mere forbearance, without such a promise, is not. A mere forbearance to sue,' says Bigelow, J., 'without any promise or agreement to that effect, by the holder of a note, forms no sufficient consideration for a guaranty. It is a mere omission on the part of the creditor to exercise his legal right, to which he is not bound by any promise, and which he may at any moment, and at his own pleasure, enforce.' Mecorney v. Stanley, 8 Cush. [ Mass.] 87. And this is so although the act of forbearance was induced by the defendant's promise. * * *"

The same principle of law was announced in Davies v. Rea, 77 Or. 648, 152 P. 267.

The complaint in the instant case alleges a promise made by Fogle to make a will devising real property, but it alleges no promise upon the part of plaintiff that, in consideration of such promise upon Fogle's part, she would forbear to prosecute the claim against him, and, in the absence of such promise upon her part, there was, under the doctrine announced in the cases just referred to, no sufficient consideration pleaded for Fogle's promise. For this reason, there was a want of a necessary and material allegation without which the complaint failed to state a cause of action.

Again the complaint was fatally defective in that it failed to state that plaintiff herself performed the alleged contract upon her part. Where a plaintiff seeks to recover upon a contract by reason of defendant's failure to perform, it is necessary to both allege and prove that plaintiff has himself performed the contract. Turner v. Corbett, 9 Or. 79; Fisk v. Henarie, 13 Or. 156, 9 P. 322; Lewis v. Craft, 39 Or. 305, 64 P. 809; Catlin v. Jones, 48 Or. 158, 85 P. 515; Longfellow v. Huffman, 49 Or. 486, 90 P. 907; Loveland v. Warner, 103...