Marshall v. Old

Decision Date13 November 1899
Citation59 P. 217,14 Colo.App. 32
PartiesMARSHALL v. OLD. [1]
CourtColorado Court of Appeals

Appeal from district court, Arapahoe county.

Action by Robert O. Old against Willis M. Marshall and another. Judgment for plaintiff, and said defendant Marshall appeals. Affirmed.

A.J. Rising and S.E. Marshall, for appellant.

T.J O'Donnell and Edwin H. Park, for appellee.


The appellee was plaintiff, and the appellant, with whom was joined R.H. Marshall, was defendant, below. There was no service of summons upon R.H. Marshall, and no appearance in his behalf, and the cause proceeded to trial and judgment against the appellant alone. The amended complaint alleged that on January 1, 1894, the plaintiff was the owner and holder of two past-due promissory notes, for $6,000 each separately secured by trust deeds upon real estate described and the defendants were the owners and holders of two trust deeds upon the same premises, subsequent and subject to those of the plaintiff, and executed to secure the payment to them of an indebtedness of $2,000, and that on that day, the owners of the equities being insolvent, and having abandoned the property, the defendants proposed to the plaintiff that if he would forbear foreclosure, and allow them time to make some disposition of the premises by which their debt might be protected, they would take charge of the property, and collect the rents, and turn them over to the plaintiff. The complaint then proceeded as follows: "That plaintiff then and there agreed with the defendants, in consideration of the payment to him (plaintiff) of all the rents of the said premises (to be applied upon the interest upon said notes), to postpone and forbear foreclosure for such a time and so long as the defendants should pay to plaintiff the rents as aforesaid; the defendants then and there agreeing with the plaintiff, in consideration of plaintiff's forbearance and postponement of said foreclosure, and giving the defendants time to sell or dispose of the said premises so as to protect their said second trust deed notes, to take charge of said premises, and keep the same in repair, and collect and pay the rents to plaintiff as aforesaid, less the amount of taxes paid, to be applied by the plaintiff as aforesaid. That the plaintiff did, in consideration of the defendants' said agreement and the payment of rents as aforesaid, forbear and postpone said foreclosure, and did not foreclose his said deeds of trust within two years from January 1, 1894. That the defendants did thereafter take charge of said premises and collect the rents thereof, and, on or about February 1, 1894, paid to the plaintiff the sum of $47.50 for rent, according to the terms of said agreement. That thereafter defendants paid to the plaintiff the following sums, to wit, on or about the following dates: April 6, 1894, $18.50; April 8, 1894 $23.50; May 8, 1894, $23.75; November 15, 1894, $50; January 25, 1895, $50; and June 14, 1895, $50; being a total of $263.25. That the said premises were rented for the sum of $25 per month each for the years of 1894 and 1895, and were occupied for the full time. That the defendants have collected as rents from the said premises for the said years 1894 and 1895 the sum of $1,200, but have only paid to plaintiff the sum of $263.25. That there is now due and owing the plaintiff from the defendants the sum of $936.75."

This complaint was not demurred to, but the point is made here that it does not state a cause of action. The argument is that it does not set forth an agreement in which there was a mutual concurrence by the parties, and that there was therefore no contract to enforce. According to the complaint, the plaintiff agreed, in consideration of the payment to him of all the rents of the premises, to forbear foreclosure as long as the rents should be so paid to him; while the defendants agreed, in consideration of his forbearance of foreclosure for a sufficient time to enable him to dispose of the premises so as to protect their own notes, to turn over to him the rents, less taxes, which they were to pay and deduct. These two so-called agreements are not the same. Saying nothing of the difference between them as to the time of forbearance, they vary as to the amount to be paid. One contemplates the payment of the whole amount of the rents to the plaintiff, while the other contemplates the payment of only a portion; that is, the whole amount diminished by a deduction for taxes. Each agreement was unilateral, and of no effect unless concurred in by the other party. If the complaint contained nothing on the subject of an agreement except that of which we have just spoken, we should say that the position of the defendant was well taken, and that the complaint set forth no contract, and hence no cause of action. A unilateral agreement amounts only to a proposition by one party to another, and, until it is accepted by the one to whom it is addressed, it is binding upon neither. Unilaterally employed, the word "agree" is equivalent to the word "offer," and a contract which is enforceable results only from the assent of the other party. Railway Co. v. Dane, 43 N.Y. 240; Pom.Cont. § 50 et seq.

It does not appear that the plaintiff's proposition to the defendants was ever accepted. It therefore never became a contract, and we do not see that anything is claimed here on account of it. But the complaint also sets forth a proposition from the defendants to the plaintiff, and it states facts which amount, in law, to an acceptance by the plaintiff of that offer. The complaint distinctly says that in consideration of the defendants' agreement the plaintiff forbore foreclosure for two years, and that from time to time he received from the defendants rents which had been collected by them from tenants of the premises. The forbearance was in consideration, not of the plaintiff's but of the defendants', agreement. It was therefore upon that agreement that the minds of the parties united. In conformity with that agreement, the plaintiff forbore, and the defendants paid him the rent. By the acts of the parties, it became a valid and enforceable contract. The defendants made the offer, and the plaintiff accepted it. It was not necessary for the plaintiff to agree, in words, to postpone foreclosure. His assent to the proposition was signified by his compliance with the terms of the offer. A request followed by performance constitutes a contract. Yancey v. Brown, 3 Sneed, 90; Strong v. Sheffield, 144 N.Y. 392, 39 N.E. 330; Morton v. Burn, 7 Adol. & E. 19; Reynolds v. Douglass, 2 Am.Lead.Cas. (5th Ed.) 96 et seq. And it is not necessary that there should be a stipulation to forbear for a specified time. An agreement to forbear for an indefinite time, if followed by actual forbearance for a reasonable time, is...

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4 cases
  • Fisk v. People's Nat. Bank
    • United States
    • Colorado Court of Appeals
    • November 13, 1899
  • Mott v. Jackson
    • United States
    • Alabama Supreme Court
    • May 11, 1911
    ... ... Where a ... second mortgagee of land proposed to the first mortgagee to ... pay rents in consideration of the latter's forbearing to ... foreclose, it was held that his actually forbearing was a ... sufficient acceptance, though there was no express agreement ... to do so. Marshall v. Old, 14 Colo. App. 32, 59 P ... 217. In our own case of Baxley v. Tallassee & Montgomery ... R. R. Co., 128 Ala. 183, 29 So. 451, the letter upon ... which the right of damages was claimed was merely one from ... one railroad officer to another, stating that he had agreed ... to make a ... ...
  • Wheeler v. Wilkin
    • United States
    • Colorado Supreme Court
    • June 8, 1936
    ... ... sufficient that, in reliance upon defendant's request and ... promise, she did forbear to sue. It was the case of ... defendant's making an offer of a promise for an act ... (forbearance), and the only acceptance of the offer that was ... necessary was the performance of the act. Marshall v ... Old, 14 Colo.App. 32, 59 P. 217; 6 R.C.L. p. 607 ... (2) ... Counsel for defendant says that the complaint fails to state ... facts sufficient to constitute a valid claim against ... defendant based upon fraud, hence fails to show that there ... was anything to forbear, and ... ...
  • Nashem v. Jacobson
    • United States
    • Washington Court of Appeals
    • January 18, 1972
    ...and requires only acceptance by plaintiff. Warner Bros. Pictures, Inc. v. Brodel, 179 P.2d 57, 67 (Cal.App.1947); Marshall v. Old, 14 Colo.App. 32, 59 P. 217, 218 (1899). Plaintiff Nothing in paragraph 5, separately or when read in light of the entire agreement, expressly or implicitly allu......

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