Nicholson v. Neary

• Decision Date: 07 January 1914
• Citation: 77 Wash. 294,137 P. 492
• Parties: NICHOLSON v. NEARY.
• Court: Washington Supreme Court

137 P. 492

77 Wash. 294

NICHOLSON v. NEARY.

Supreme Court of Washington

January 7, 1914

Department 1. Appeal from Superior Court, Spokane County; Stanley Webster, Judge.

Action by E. Nicholson against W. M. Neary. Judgment for defendant and plaintiff appeals. Affirmed.

Belden & Losey, of Spokane, for appellant.

E. C Macdonald and Oscar Cain, both of Spokane, for respondent.

CHADWICK J.

Respondent gave a note payable to the order of appellant and for his accommodation. Later appellant sent the note to his attorneys at Spokane for collection. Respondent was unable to pay, and upon request of the attorneys, and to prevent a present action, he gave a new note for the amount due on the first note. This action was brought on the second note. Respondent answered, denying consideration. After hearing the testimony judgment was rendered in favor of respondent. Appellant was not present at the trial, nor was he a witness in his behalf, although the court offered to adjourn the hearing until his deposition could be taken.

The fact that the original note was given for the accommodation of the appellant, and that there was no consideration therefor, is not denied in the record before us. Appellant relies solely upon the legal propositions: First, that forbearance to sue upon the first note is a sufficient consideration to support the promise of the note sued on; and, second, that the proof is insufficient to show a want of consideration for the first note.

Appellant quotes the rule as laid down in 6 Am. & Eng. Encyc. of Law (2d Ed.) p. 744, where this principle is extracted from the authorities: 'If a person be possessed of a right which he may legally exercise, his forbearance at the instance of the promisor to exercise it is a valuable consideration for the promise'--and from Pollock on Contracts, p. 166: 'Consideration means not so much that one party is profiting as that the other abandons some legal right in the present.' These definitions are comprehensive and well sustained. The question recurs, Is the acceptance of a new obligation for an overdue promise, made without consideration, and the giving up of a right to begin a present action at law, such a forbearance as will create a consideration for the new promise? We have not found a case which in its facts is exactly parallel with the one at bar, nor has any been cited. The words 'well-founded claim' occur frequently in the books; that is, that the forbearance must pertain to a claim upon which a recovery might certainly be had, or where a recovery is at least doubtful. If the claim could not be enforced in law or equity for the want of a consideration for the promise, forbearance to sue will not constitute a valid consideration for a new promise. It is not the right to maintain an action which, when given up, furnishes a consideration. It is only when a recovery, if suit were maintained, would be certain, or, at least, doubtful. In general the waiver of any legal or equitable right at the request of another is a sufficient consideration for a promise, but the mere privilege of filing a complaint is not a right that can properly be called either a legal or an equitable right. The words 'legal right' evidently mean a right that may be enforced in a civil action. 5 Words and Phrases, p. 4080 (citing Colson v. Commonwealth, 110 Ky. 233, 61 S.W. 46).

'The compromise of doubtful rights is a sufficient consideration for a promise to pay money, but compromise implies mutual concession. Here there was none on the part of the payee of the note. His forbearance to sue for what he could not recover at law or in equity was not a sufficient consideration for the note.' Foster v. Metts, 55 Miss. 80-82, 30 Am. Rep. 504.

'If the right is not doubtful, there is no consideration; for there is neither benefit to the promissor nor detriment to the promisee, and therefore forbearance, or a promise to forbear, to insist on a claim clearly unenforceable cannot be a consideration.' 9 Cyc. 341, 342.

A father while in a state of intoxication was induced to execute a note for the indebtedness of an adult son. After the maturity of the note, and while in a state of sobriety, he promised the holder to pay the note if he would wait until fall. It was held that the note, having been given while in a state of intoxication, was without consideration, and could not be rendered valid by a subsequent promise and forbearance. The holder of the note could have made no previous demand on which a recovery could have been had. Consequently a forbearance to sue was not a legal consideration. Newell v. Fisher, 11 Smedes & M. (Miss.) 431, 49 Am. Dec. 66.

'It is a very ancient rule of law that a promise to pay money, in consideration of forbearance to sue, when there is no legal cause of action, is without consideration and void.' Palfrey v. Portland, etc., 4 Allen (Mass.) 55.

A promise to pay, in settlement of a...