Sec 533

As has been incidentally noticed, a promise to compromise a claim utterly unfounded will not be regarded as a valid consideration, (1) because such a claim is obviously and transparently valueless; (2) because to sanction such promises would be to sanction blackmailing; and (3) because the selling of unfounded claims, which such a transaction would virtually amount to, would be illegal as a species of champerty.1 It is otherwise when a suit is brought bona fide on probable cause; and a promise to compromise such suit is a valid consideration, even though the suit should be held to be unfounded. Were it otherwise there could be no compromise of litigation, since there is no litigation in which one or the other party, if the case be pressed to judgment, does not fail to make out his case.2 Not only will such agreements, when there is no fraud, be sustained by the courts, but they are highly favored, as productive of peace and good-will in the community, and reducing the expense and persistency of litigation.3 The rule is peculiarly applicable in family settlements, where right and wrong on both sides are so where an unreasonable bargain has been extorted, supra, sec 165, or where there has been a distortion or suppression of facts, supra, sec 232-252.

So of compromise of doubtful claim.

1 See supra, sec 411 et seq.; infra, sec 836 et seq.

2 Supra, sec 198; infra, sec 1000; Leake, 2d ed. 627; Longridge v. Dorville, 5 B. & Ald. 117; Atlee v. Backhouse, 3 M. & W. 633; Lucy ex parte, 4 De G. M. & G. 356; Thomas p. Brown, L. R. 1 Q. B. D. 714; Home Ins. Co. p. Baltimore, 93 U. S. 527; Blake v. Peck, 11 Vt. 483; Hodges p. Saunders, 17 Pick. 470; Clark v. Gamwell, 125 Mass. 428; Crans v. Hunter, 28 N. Y. 389; Weh-rum p. Kuhn, 61 N. Y. 623; Wrege v. Westcott, 30 N. J. L. 212; Hoge v. Hoge, 1 Watts, 216; Tryon p. Miller, 1 Whart. 11; Fleming v. Ramsey, 46 Penn. St. 252; Zane v. Zane, 6 Munf. 406; Grasselli v. Lowden, 11 Oh. St. 349; Hindert v. Schneider, 4 111. Ap. 203; Paulin v. Howser, 63 111. 312;.

Stearns v. Johnson, 17 Minn. 142; Van Dyke v. Davis, 2 Mich. 145; Truett v. Chaplin, 4 Hawks, 178; Taylor v. Patrick, 1 Bibb, 168; McKinley p. Wat-kins, 13 111. 140; Livingston v. Dugan, 20 Mo. 102; Riley v. Kershaw, 52 Mo. 224; Snow v. Grace, 29 Ark. 131.

3 2 Ch. on Con. 11th Am. ed. 46; Cook v. Wright, 1 B. & S. 559; Longridge v. Dorville, 5 B. & Ald. 117; Edwards v. Baugh, 11 M. & W. 641; Stewart v. Stewart, 6 Cl. & F. 911; Read v. Hitchings, 71 Me. 590; Pitkin p. Noyes, 48 N. H. 304; Blake p. Peck, 11 Vt. 483; Leach p. Fobes, 11 Gray, 509; Powers v. Freeman, 2 Lans. 127; Brown v. Sloane, 6 Watts, 421; Barton v. Wells, 5 Whart. 225; Logan v. Matthews, 6 Barr, 417; Fisher v. May, 2 Bibb, 448; Truett v. Chaplin, 4 Hawks, 178; Williams v. Alexander, 4 Ired. Eq. 207; Field v. Weir, 28 Miss. 56; Warren v. Williamson, 8 Baxt. 427. See supra, sec 198; infra, sec 1000.

often dependent on feeling;1 in which eases the courts, unless there be imposition, will not undertake to weigh actual gain or loss.2 On the same principle, the courts will sustain a settlement of a large unliquidated claim on a cash payment much smaller in amount.3 - It is not necessary, as we have seen, that there should be a specific new consideration to alter an old contract.4 - Whether or no suit has been instituted makes no difference;5 but there must be some probable cause, so as to make out a case of doubt, to make such an agreement binding.6 If an executor, for instance, should say to a legatee, whose claim is unquestionable, "I dispute your claim," and thus get from the legatee a promise to take a less amount than that designated by the will, the legatee would not be bound by the promise.7 - But the fact that a suit must have failed from want of technical proof does not make such a compromise void for want of consideration;8 nor is it necessary that the question in dispute should be one as to which, looking back on it from our present stand-point, we should say, "this was really a question of much doubt." It is enough it it was one as to which doubt at the time could honestly be felt.9

1 Groves v. Perkins, 6 Sim. 576; Langstaffe v. Fenwick, 10 Ves. 405; Bierers's App., 92 Penn. St. 265; Smith v. Smith, 36 Ga. 184. As to limitations on this position, see supra, sec 394 et seq.

2Stewart v. Stewart, 6 Cl & F. 969; Shotwell v. Murray, 1 John. Ch. 516.

3Infra, sec 937, 1000; supra, sec 521; Atlee v. Backhouse, 3 II. & W. 651; Wilkinson v. Byers, 1 Ad. & El. 106; Tuttle v. Tuttle, 12 Met. 551; Howard v. Norton, 65 Barb. 161; Palmerton v. Huxford, 4 Denio, 166; Cutter v. Cochrane, 116 Mass. 408; Rollins v. Marsh, 128 Mass. 116.

4 Brown v. Everhard, 52 Wis. 205; supra, sec 505, 521.; infra, sec 858.

5Callisher v. Bischoffsheim, L. R. 5 Q.B. 451; Wilby v. Elgee, L. R. 10 C. P. 497; Cook v. Wright, 1 B. & S. 559;.

Longridge v. Dorville, 5 B. & Al. 117; Hamaker v. Eberley, 2 Binn. 506; Ben-net v. Paine, 5 Watts, 259; Muirhead v. Kirkpatrick, 21 Penn. St. 237.

6 Supra, sec 532; Edwards v. Baugh, 11 M. & W. 641.

7Infra, sec 535; Thomson v. Eastwood, L. R. 2 App. Ca. 215. See Moore v. Fitzwater, 2 Rand. (Va.) 442; Foster v. Metts, 55 Miss. 77.

8 Thomas v. Brown, L. R. 1 Q. B. D. 714.

9 Cook v. Wright, 1 B. & S. 559; Kerr v. Lucas, 1 Allen, 279; Russell v. Cook, 3 Hill, 504; Hoge v. Hoge, 1 Watts, 216; Durham v. Wadlington, 2 Str. Eq. 258; Allen v. Prater, 35 Ala. 169. In Little v. Allen, Sup. Ct. Tex. 18S2 (13 Rep. 413), we have the following from Stayton, J.: "A mutual agreement for compromise is, in itself,.