Silver v. Graves

• Decision Date: 06 September 1911
• Citation: 210 Mass. 26,95 N.E. 948
• Parties: SILVER et al. v. GRAVES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 26

95 N.E. 948

SILVER et al. v. GRAVES.

Supreme Judicial Court of Massachusetts, Suffolk.

September 6, 1911

COUNSEL

Geo H. Tinkham and Simon E. Duffin, for plaintiffs.

Wm. A Davenport, for defendant.

OPINION

RUGG J.

The father of the three plaintiffs and of the defendant was survived by them and a widow. By his will each of the plaintiffs was given $100, the widow $1,000, and the defendant the residue of the estate, amounting to about $7,500. The plaintiffs appealed from a decree of the probate court allowing the will. There was evidence tending to show that during the pendency of the appeal there were several conferences between the plaintiffs, or some of them, and the defendant, at which the defendant promised the plaintiffs that, if they would withdraw the appeal and let the will be allowed, he would 'make it right * * * with a certain sum' and 'give a certain sum which would be satisfactory.' He declined to name any specific sum of money which he would pay to them. As a consequence of his promise, the plaintiffs withdrew their appeal, and the will was allowed finally. This action is brought to recover the breach of this agreement.

1. The superior court refused to rule that upon all the evidence the plaintiffs could not recover. It is urged that this ruling should have been given for the reason that there was no evidence sufficient to show a binding contract. The promise was between parties competent to contract with each other. It was not tainted with illegality. It was to do a specific thing, namely, to withdraw an appeal in proceedings in court which had been seasonably taken and was pending. The pendency of a genuine cause in court is a definite subject about which to contract. Forbearance to prosecute further such a cause is an adequate consideration for a binding agreement. The only matter which was indefinite was the price to be paid for such forbearance. This was not left wholly to conjecture, for the parties were not silent about it, but might have been found to have agreed that it was to be a sum which would be 'right' or 'satisfactory.' This means what ought to satisfy a reasonable person, or what was fair and just as between the parties. Handy v. Bliss, 204 Mass. 513-519. In determining what ought to be satisfactory to a rational person, all the circumstances of the controversy should be considered, and each given its due weight. The conditions under which the will was executed, the physical health and mental power and individual characteristics of the testator, the strength or weakness of the grounds upon which any contest of the allowance of the will might have been justly predicated, the amount of property which each of the plaintiffs might have received in case of intestacy, and the sum actually given to each under the will, for example, are elements to be considered in ascertaining what would be a fair compensation for the concession by the plaintiffs and the advantage to the defendant. It is true that in some aspects of the case there would be little if any gain to the parties from a contract of this sort. In some respects the range of inquiry might be as extensive in an action like this as in the original controversy. But that is no ground for not enforcing the contract, if it is found to have been made. The only element left undetermined in this contract is that of price. But this is not infrequently found to be indefinite in contracts of sale and for work and labor. It is not necessary that the subject-matter of such a contract should possess a price in the market or be commonly bartered in trade. It is enough if there is a reasonable value, which can be ascertained by the practical methods of trial. The difficulty of fixing the compensation is no greater than occurs in many cases. Maynard v. Royal Worcester Corset Co., 200 Mass 1-8, 85 N.E. 877; C. W. Hunt Co. v. Boston Elev. Ry., 199 Mass. 220, 233, 236, 85 N.E. 446; Noble v. Joseph Burnett Co., 208 Mass. 75, 94 N.E. 289. This contract has become executed fully on the side of the plaintiffs by doing that which they agreed to do, and that which they can never recover back in kind. The withdrawal of their appeal wholly deprived them of opportunity for contesting the will. When a contract has been executed on one side, the law will not permit the injustice of the other party retaining the benefit without paying unless compelled by some inexorable rule. No insuperable difficulty arises as to the uncertainty or indefiniteness of this contract. Carnig v. Carr, 167 Mass. 544, 46 N.E. 117, 35 L. R. A. 512, 57 Am. St. Rep. 488; Raymond v. Rhodes, 135 Mass. 337; Jemry v. Busk, 5 Taunt. 302; Acebal v. Levy, 10 Bing. 376-382.

2. There is no doubt that the forbearance to prosecute a genuine contest in the courts is a sufficient consideration for a promise. In order that it may have this effect, however, the intention must be sincere to carry on a litigation which is believed to be well grounded and not false, frivolous vexatious or unlawful in its nature. The abandonment of an honest purpose to carry on a litigation, even though its character be not such, either in law or fact or both, as ultimately to commend itself to the judgment of the tribunal which finally pases upon the question, is a surrender of something of value, and is a sufficient consideration for a contract. But the giving up of litigation, which is not founded in good faith, and which does violence to an enlightened sense of justice in view of the knowledge of the one making the concession, is not the relinquishment of a thing of value, and does not constitute a sufficient consideration for a contract. Blount v. Wheeler, 199 Mass. 330-336, 85 N.E. 477, 17 L. R. A. (N. S.) 1036, and cases cited. Prout v. Pittsfield Fire Dist., 154 Mass. 450, 28 N.E....