Same - Forbearance To Exercise A Right

71. Forbearance or a promise to forbear from doing what one is otherwise entitled to do is a sufficient consideration.

72. Forbearance or a promise to forbear from doing what one cannot legally do is no consideration; but if a right is doubtful, so that there are reasonable grounds for trying to enforce it, forbearance is a sufficient consideration.

73. COMPROMISE. Where the forbearance is in the compromise of a disputed claim made or action brought in good faith (and on reasonable grounds),78 forbearance to insist or sue on the claim, or further to prosecute the action, is a sufficient consideration without regard to the validity of the claim.

75McCali Co. v. Icks, 107 Wis. 232. 83 N. W. 300. See, also, Burgess Sulphite Fibre Co. v. Broomfield, 180 Mass. 283, 62 N. E. 367; Brawley v. U. S., 96 U. S. 168, 24 L. Ed. 622; Lobenstein v. U. S., 91 U. S. 324, 23 L. Ed. 410; Grant v. U. S., 7 Wall. 331, 19 L. Ed. 194. Where land was agreed to be sold, and the title was defective, by reason of a suit to set aside a will under which the vendor claimed, an agreement to postpone execution of the contract until determination of the suit was sustained on the ground that the vendee would be bound to accept the title if the will should be sustained. Hale v. Cravener, 128 111. 408, 21 N. E. 534. See ante, p. 149, note 74. See "Sales," Dec. Dig. (Key-No.) §§ 24, 25; Cent. Dig. §§ 49-32.

76 Ensign v. Park, 69 Kan. S70. 77 Pac. 583. See "Contracts," Dec. Dig (Key-No.) §§ 58, 59; Cent. Dig. §§ 346-348.

77 Chapter 11, pp. 576-578.

78 As to the qualification introduced by the words in parentheses, see post, p. 155.

Consideration may consist in a forbearance or promise to forbear from doing what one is otherwise entitled to do; as, for instance, where a person abstains from the use of.liquor and tobacco, on another's promise to pay him money.79 The abandonment of any right, or a promise to forbear from exercising it, is a sufficient consideration for a promise.80 The right may be legal or equitable, certain or doubtful; and it may exist against the promisor or against a third party.81 A creditor, if he extends the time for payment of the debt, gives up a right, and so furnishes a consideration for an additional promise by the debtor,82 or for the promise of a third party to guaranty or pay the debt.83 So, also, the discharge of a debtor from the debt,84 or from lawful imprisonment for the debt,85 is a consideration for the promise of a third person to pay the debt; and the surrender or cancellation of a note or mortgage is a consideration for a new note or mortgage.86

79 Ante, pp. 133, 134.

80 Blake v. Peek, 11 Vt. 4S3; Leverenz v. Haines, 32 111. 337; Woodburn v. Woodburn, 123 111. 608, 14 N. E. 58, 16 N. E. 209; Calkins v. Chandler, 36 Mich. 320, 24 Am. Rep. 593; Marshalltown Stone Co. v. Manufacturing Co., 114 Iowa, 574, 87 N. W. 496; Waters v. White, 75 Conn. 88, 52 Atl. 401. Agreement between attachment creditors of a debtor. Mygatt v. Tarbell, 78 Wis. 351, 47 N. W. 618; Doan v. Dow, 8 Ind. App. 324, 35 N. E. 709; Brown-ell v. Harsh, 29 Ohio St. 631. Forbearance to contest will. Rector, etc., of St Mark's Church, v. Teed, 120 N. Y. 583, 24 N. E. 1014. The release by a person of a claim, in good faith, of a future contingent interest in certain land under the will of a deceased ancestor, is a sufficient consideration for a note given therefor, whether he in fact had any interest in the land or not. Brooks v. Wage, 85 Wis. 12, 54 N. W. 997. Release of mortgage. Norris v. Vosburgh, 98 Mich. 426, 57 N. W. 264. See "Contracts;" Dec. Dig. (Key-No.) § 71; Cent. Dig. §§ 295-324.

81 Release by wife of inchoate right of dower will support a promise by her husband's grantee to pay her money. Worley v. Sipe, I11 Ind. 238, 12 N. E. 385. Release of inchoate right of homestead in public lands will support a promise. McCabe v. Caner, 68 Mich. 1S2, 35 N. W. 901. And see Paxton Cattle Co. v. Bank, 21 Neb. 621, 33 N. W. 271, 59 Am. Rep. 852. See "Contracts;' Dec. Dig. (Key-No.) § 71; Cent. Dig. §§ 295-324.

82Lipsmeier v. Vehslage (C. C.) 29 Fed. 175; Martin v. Nixon, 92 Mo. 26, 4 S. W. 503; Van Gorder v. Bank (Pa.) 7 Atl. 144; Brown v. Bank, 115 Ind. 572, 18 N. E. 56; Lundberg v. Elevator Co., 42 Minn. 37, 43 N. W. 685; Sanders v, Smith (Miss.) 5 South. 514; Fraser v. Backus, 62 Mich. 540, 29 N. W. 92; Lodge v. Hulings, 63 N. J. Eq. 159, 51 Atl. 1015. See "Contracts," Dec. Dig. (Key-No.) § 71; Cent. Dig. §§ 205-324.

83 Calkins v. Chandler, 36 Mich. 320, 24 Am. Rep. 593; Bank of New Hanover v. Bridgers, 98 N. C. 67, 3 S. E. 820, 2 Am. St. Rep. 317; Meyers v. Hockenbury, 34 N. J. Law, 346. See "Contracts," Dec. Dig. (Key-No.) § 71; Cent. Dig. §§ 295-32.',.

84 Whitney v. Clary, 145 Mass. 156, 13 N. E. 393; Fulton v. Loughlin, 118

It has been held that agreement to forbear is necessary, and that mere forbearance to sue, for instance, without any agreement to that effect, is not a sufficient consideration for the promise of another to pay the debt of the person liable, though the act of forbearance may have been induced by the promise; 87 but upon principle it seems that actual forbearance upon request and in reliance upon the promise is sufficient.88