A common form in which a forbearance appears as the consideration for a promise is in the settlement or compromise of a disputed claim. Forbearance by a person to insist upon a demand, or to prosecute an action which he has commenced, is, subject to exceptions to be presently explained, a sufficient consideration.95 Illustrations are furnished by cases in which one party makes a claim or demand on another, and the latter disputes it, whereupon they settle the dispute by a compromise, or by agreeing upon the amount due in an account stated. Likewise a compromise will support a promise by a third party.96

91 In Barnard v. Simons (1616) 1 Rolle, Abr. 26, Langd. Cas. Cont. 194, it was said that "if A. makes a void assumpsit to B., and afterwards a stranger comes to B., and, in consideration that B. will relinquish the assumpsit made to him by A., he promises to pay him 10, this is not a good consideration to charge him, because the first assumpsit was void." See Palfrey v. Railroad Co., 4 Allen (Mass.) 55; Shuder v. Newby, 85 Tenn. 348, 3 S. W. 438; Clark v. Jones, 85 Ala. 127, 4 South. 771; Sharpe v. Rogers, 12 Miun. 174 (Gil. 103); Harris v. Cassady, 107 Ind. 15S, 8 N. E. 29; Ecker v. McAllister, 54 Md. 369; Schroeder v. Fink, 60 Md. 438; Long v. Towl, 42 Mo. 545, 97 Am. Dec. 355; Martin v. Black, 20 Ala. 309; Prater v. Miller, 25 Ala. 320, 60 Am. Dec. 521; Davisson v. Ford, 23 W. Va. 617; Eblin v. Miller's Ex'rs, 78 Ky. 371. Many of these cases, however, in conflict with what is the prevailing rule, maintain that forbearance to sue on an invalid claim, though honestly believed in, is no consideration. Post, p. 155. See "Contracts," Dec. Dig. (Key-No.) § 72; Cent. Dig. § 325.

92 Everingham v. Meighan, 55 Wis. 354, 13 N. W. 269. See "Contracts," Dec. Dig. (Key-No.) § 12; Cent. Dig. § 325.

93 Herring v. Dorell, 8 Dowl. Pr. Cas. 604. See "Contracts," Dec. Dig. (Key-No.) § 72; Cent. Dig. § 325.

94 Smith v. Coker, 110 Ga. 654, 36 S. E. 107; Tolhurst v. Powers, 133 N. Y. 460, 31 N. E. 326 (surrender of what promisee has no right to retain). See "Contracts," Dec. Dig. (Key-No.) § 72; Cent. Dig. § 325.

The authorities are all agreed that the promisee must believe in his claim, or in his action; and that forbearance to sue on a demand known by him to be unenforceable, or to proceed in an action knowingly brought without cause, is no consideration.97 It is also well settled that the mere fact that the claim was invalid or unenforceable does not prevent its surrender from constituting a good consideration if the claim was a doubtful one in regard to the validity of which there was reasonable ground for difference of opinion.98 When we reach this point, the difficulty begins.99

95 SMITH v. FARRA, 21 Or. 395, 28 Pac. 241, 20 L. R. A. 115, Throckmorton Cas. Contracts, 109; McKinley v. Watkins, 13 111. 140; Cook v. Wright, 1 Best & S. 559; Callisher v. Bischoffsheim, L. R. 5 Q. B. 449; McClellan v. Kennedy, 8 Md. 247; Longridge v. Dorville, 5 Barn. & A. 117; Jones v. Rit-tenhonse, 87 Ind. 348; Fisher v. May's Heirs, 2 Bibb (Ky.) 448, 5 Am. Dec. 626; Hennessy v. Bacon, 137 U. S. 85, 11 Sup. Ct. 17, 34 L. Ed. 605; Sisson v. City of Baltimore, 51 Md. 83; Crowther v. Farrer, 15 Q. B. 677; Nash v. Armstrong. 10 C. B. (N. S.) 259; Heffelfinger v. Hummel, 90 Iowa, 311, 57 N. W. 872; McClure v. McClure, 100 Cal. 339, 34 Pac. 822. The suit need not be actually discontinued before suit on the promise. The agreement ends it. Phillips v. Pullen, 50 N. J. Law, 439, 14 Atl. 222; Van Campen v. Ford, 53 Hun, 636, 6 N. Y. Supp. 139; Rappanier v. Bannon (Md.) 8 Atl. 555. See "Compromise and Settlement" Dec. Dig. (Key-No.) § 6; Cent. Dig. §§ S5-50; "Contracts," Cent. Dig. § 829.

96 Bane's Case (1611) 9 Coke, 93b. Withdrawal of a suit against a person, for instance, will support his father's note. Mascolo v. Montesanto, 61 Conn. 50, 23 Atl. 714, 29 Am. St Rep. 170. See "Compromise and Settlement," Dec. Dig. (Key-No.) § 6; Cent. Dig. §§ 85-50; "Contracts," Cent. Dig. § 829.

97 Wade v. Simeon, 2 C. B. 548; McKinley v. Watkins, 13 111. 140; Rood v. Jones, 1 Doug. (Mich.) 188; McGlynn v. Scott, 4 N. D. 18, 58 N. W. 460; Phillips v. Pullen. 50 N. J. Law, 439, 14 Atl. 222; Von Brandenstein v. Ebens-berger, 71 Tex. 267, 9 S. W. 153; Demars v. Manufacturing Co., 37 Minn. 418, 35 N. W. 1; Taylor v. Weeks, 129 Mich. 233, 88 N. W. 466. See "Compromise and Settlement," Dec. Dig. (Key-No.) § 6; Cent. Dig. §§ 85-50; "Contracts," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 328-330.

98 SMITH v. FARRA, 21 Or. 395, 28 Pac. 241, 20 L. R. A. 115. Throckmorton Cas. Contracts, 109; Grandin v. Grandin, 49 N. J. Law, 508, 9 Atl. 756, 60 Am. Rep. 642; Dunham v. Griswold, 100 N. Y. 224, 3 N. E. 76; Korne v. Korne, 30 W. Va. 1, 3 S. E. 17; Neibles v. Railway Co., 37 Minn. 151, 33 N. W. 332; Honeyman v. Jarvis, 79 111. 318; Potts v. Tolk Co., 80 Iowa, 401, 45

99 See cases cited infra, notes 1-5.

In some jurisdictions, the compromise is said to be void for want of consideration unless there was actual doubt as to the validity of the promisee's claim.1 According to these authorities, belief by the promisee in the existence of a good claim is not sufficient, if in fact there was no reasonable ground for his belief.

In England,2 however, and by the weight of authority in this country,3 the compromise is upon sufficient consideration if the promisee surrenders a claim made by him in good faith, even though the claim was unenforceable and there was no reasonable ground for his belief in its validity. In a leading English case it was said: "If he bona fide believes he has a fair chance of success, he has a reasonable ground for suing, and his forbearance to do so will constitute a good consideration. When such a person forbears to sue, he gives up what he believes to be a right of action, and the other party gets an advantage, and, instead of being annoyed with an action, he escapes from the vexations incident to it. * * * It would be another matter if a person made a claim which he knew to be unfounded, and by a compromise derived an advantage under it; in that case his conduct would be fraudulent."4 And in a later case it was said: "If there is in fact a serious claim honestly made, the abandonment of the claim is a good consideration. * * * Now, by 'honest claim,' I think is meant this: that a claim is honest if the claimant does not know that his claim is unsubstantial, or if he does not know facts, to his knowledge unknown to the other party, which show that his claim is a bad one."5 These cases thus allow the whole question to depend on the good faith of the party forbearing, without any regard whatever to the validity of his claim.

N. W. 775; Prout v. Pittsfield Fire Dist, 154 Mass. 450, 28 N. E. 679; Dovale v. Ackermann, 2 App. Div. 404, 37 N. Y. Supp. 959. See "Compromise and Settlement," Dec. Dig. (Key-No.) § 6; Cent. Dig. §§ 35-50; "Contracts," Cent. Dig. § 829.

1 Mulholland v. Bartlett, 74 I11. 58; Bates v. Sandy, 27 I11. App. 552; United States Mortgage Co. v. Henderson, I11 Ind. 24, 12 N. E. 88; Russell v. Wright, 98 Ala. 652, 13 South. 594; Pink v. Smith, 170 Pa. 124, 32 Atl. 566, 50 Am. St. Rep. 750; Palfrey v. Railroad Co., 4 Allen (Mass.) 55; Sehroeder v. Fink, 60 Md. 436; Emmittsburg R. Co. v. Donoghue, 67 Md. 383, 10 Atl. 233, 1 Am. St. Rep. 396; Davisson v. Ford, 23 W. Va. 613; Cline v. Templeton, 78 Ky. 550; Gunning v. Royal, 59 Miss. 45, 42 Am. Rep. 350; Price v. Bank, 62 Kan. 743, 64 Pac. 639. See "Compromise and Settlement," Dec. Dig. (Key-No.) § 6; Cent. Dig. §§ 85-50; "Contracts," Dec. Dig. (Key-No.) § 68; Cent. Dig. §§ 328-880.

2 See cases cited infra, notes 4, 5.

3 SMITH v. FARRA, 21 Or. 395, 28 Pac. 241, 20 L. R. A. 115, Throckmorton Cas. Contracts, 109; Crans v. Hunter, 28 N. Y. 389; Zoebisch v. Von Minden, 120 N. Y. 406, 24 N. E. 795; Grandin v. Grandin, 49 N. J. Law, 508, 9 Atl. 756, 60 Am. Rep. 642; Rue v. Meirs, 43 N. J. Eq. 377, 12 Atl. 369; Bellows v. Sowles, 55 Vt 391, 45 Am. Rep. 621; Hewett v. Currier, 63 Wis. 3S6, 23 N. W. 884; Appeal of Gormley, 130 Pa. 467, 18 Atl. 727; Hansen v. Gaar, Scott & Co., 63 Minn. 94, 65 N. W. 254; Di Iorio y. Di Brasio, 21 R. I. 208, 42 Atl. 1114; Hanchett v. Ives, 171 I11. 122, 49 N. E. 206; Rowe v. Barnes, 101 Iowa, 302, 70 N. W. 197; GALUSHA v. SHERMAN, 105 Wis. 203, 81 N. W. 495, 47 L. R. A. 417, Throckmorton, Cas. Contracts, 200. See "Compromise and Settlement," Dec. Dig. (Key-No.) § 6; Cent. Dig. §§ 85-50; "Contracts," Cent. Dig. § 329.

4 Callisher v. Bischoffsbeim, L. R. 5 Q. B. 449. See, also, Cook v. Wright, 1 B. & S. 559. See "Compromise and Settlement," Dec Dig. (Key-No.) § 6;

Admitting that forbearance from what one is not legally entitled to do is no consideration, it may be said that one has a right to assert or litigate a claim in which he believes, and that forbearance from this right is a consideration.