This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A waiver of rights concerning procedure, mode of trial and remedies given by law to parties litigant,1 such as a promise to submit a cause to the court without summons or jury;2 or to waive a jury;3 or to refrain from causing a writ of garnishment to issue;4 or continuing a writ of garnishment which has issued already;5 or withdrawing an appeal;6 or abandonment of a right to appeal and withdrawal of motion for a new trial;7 or a motion to set aside a judgment;8 or to prosecute error;9 or dismissing proceedings in error;10 or forbearing to go into bankruptcy;11 or a waiver of a right to a detailed accounting by a partner;12 a waiver of the right to plead the statute of frauds;13 waiving a defense;14 or allowing default judgment;15 the continuance of an injunction in force;16 a relinquishment of costs by a party;17 or a saving of costs to the adversary party;18 or B's permission to A to manage a suit to which B is a party;19 as where B, a subcontractor, agrees with A, the contractor, not to sue the city for damages for delaying work, but to co-operate with A in A's suit, A to pay B his share of the amount recovered,20 are considerations. So consent by an heir to a suit to contest a will, payment of $1 and a promise to pay costs and attorney fees is consideration for a promise by another heir to contest the will and pay the first heir a specified sum in case of success.21 So reducing a claim to judgment is a consideration.22 Allowing a judgment to be revived and withdrawing a plea of payment;23 A's promise to pay the expenses of an action to be brought by B against C, if not champertous;24 or A's promise to pay the costs if B defends a suit against A,* are considerations. A promise not to defend an action upon a debt secured by a mortgage, has been said to be a consideration for a promise not to enforce a personal liability against the debtor.26 As far as these promises are binding upon the promisor, it is clear that he is giving up a legal right, and that such promise is a sufficient consideration; but some of these promises are to renounce rights which the law will not permit him to renounce. The sufficiency of a promise not to go into bankruptcy as a valuable consideration may be questioned. If the party who promises not to resort to voluntary bankruptcy proceedings, breaks his promise and institutes such proceedings, it is difficult to see how such promise could prevent him from resorting to the court for such relief.27 If the party who makes such promise does not really renounce his right to institute voluntary bankruptcy proceedings by making such promise, it is difficult to find a consideration in such transaction.
29 State exrel. v. Hills, 94 0. S. 171, L. R. A. 1917B, 684, 113 N. E. 1045.
See also Sec. 547, n. 7.
1 California. Spielberger v. Thompson, 131 Cal. 56, 63 Pac. 132 [rehearing denied, 63 Pac. 678].
Illinois. Murphy v. Murphy, 93 HI. App. 671.
Iowa. Watrous v. Watrous, 180 la. 884, 163 N. W. 439.
Nebraska. Weilage v. Abbott (Neb.), 90 N. W. 1128.
West Virginia. County Court v. Hall, 51 W. Va. 269, 41 S. E. 119.
2Bartlett v. Woodworth-Mason Co., 69 N. H. 316, 41 Atl. 264; Bolln v. Met-calf, 6 Wyom. 1, 71 Am. St. Rep. 898, 42 Pac. 12, 44 Pac. 694.
3 Murphy v. Murphy, 93 111. App. 671; Watrous v. Watrous, 180 la. 884, 163 N. W. 439.
4 Brown v. McCreight, 187 Pa. St. 181, 41 Atl. 45.
5 Spielberger v. Thompson, 131 Cal. 55, 63 Pac. 132 [rehearing denied, 63
Pac. 678]; Weilage v. Abbott, 3 Neb. (unoff.) 157, 90 N. W. 1128.
6Weilage v. Abbott, 3 Neb. (unoff.) 157, 90 N. W. 1128; County Court v. Hall, 51 W. Va. 269, 41 S. E. 119.
7 Murphy v. Murphy, 93 111. App. 671.
8 Taylor v. Ewing, 74 Wash. 214, 132 Pac. 1009.
1 Jonesboro Hardware Co. v. Western Tie & Timber Co., 134 Ark. 543, 204 S. W. 418; Townsend v. Neuhardt, 139 Tenn. 695, 203 S. W. 255.
2 Pendleton v. Electric Light Co., 121 N. Car. 20, 27 S. E. 1003.
3 Lanahan v. Heaver, 77 Md. 605, 20 L. R. A. 759, 26 Atl. 866.
4 Jonesboro Hardware Co. v. Western Tie & Timber Co., 134 Ark. 543, 204 S. W. 418.
5 Townsend v. Neuhardt, 139 Tenn. 695, 203 S. W. 255.
6Danheiser v. Germania Savings Bank & Trust Co., 137 Tenn. 650, 194 S. W. 1094.
7 Russell v. Daniels, 5 Colo. App. 224, 37 Pac. 726; Lundon v. Waddick, 98 la. 478, 67 N. W. 388; Collins v. Fawcett (Ky.),39 S. W. 250.
8 Read v. French, 28 N. Y. 285.
9 Gering v. School District, 76 Neb. 219, 107 N. W. 250.
10McSweeney Packing Co. v. Beshlin, 211 Fed. 922.
11Dawson v. Beall, 68 Ga. 328; Hinckley v. Arey, 27 Me. 362; Melroy v. Kemmerer, 218 Pa. St. 381, 11 L. R. A. (N.S.) 1018, 120 Am. St. Rep. 888, 67 Atl. 699; Herman v. Schlesinger, 114 Wis. 382, 91 Am. St. Rep. 922, 90 N. W. 460. If the debt would not be discharged by bankruptcy such forbearance is not sufficient consideration. Schlessinger v. Schlessinger, 39 Colo. 44, 8 L. R. A. (N.S.) 863, 88 Pac. 970.
12McCuIlough v. Barr, 145 Pa. St. 459, 22 Atl. 962 (for a promise that all property held by such partner shall be divided equally with the other).
13Wohl v. Barnum, 116 N. Y. 87, 5 L. R. A. 623, 22 N. E. 280.
14 Roller v. McGraw, 63 W. Va. 462, 60 S. E. 410.
To amount to a consideration, the waiver of a defense must, as a rule, be a waiver of a defense which is asserted in good faith. See Sec. 612 et seq.
15Moore v. First National Bank, 139 Ala. 595, 36 So. 777; Heim v. Butin, 109 Cal. 500, 50 Am. St. Rep. 54, 40
Pac. 39 (a promise by mortgagee not to take a deficiency judgment, but to bid off the property for the full amount of his judgment); McDaniel v. Evans, 90 Ky. 568, 14 S. W. 541; Ryan v. Trimble (Ky.), 60 S. W. 633 (for a promise that a certain minimum price should be paid for the land when sold); Dab-ney v. McFarlen (Tex. Civ. App.), 34 S. W. 142; Ward v. Gibbs, 10 Tex. Civ. App. 287, 30 S. W. 1125. But where no such right exists, a waiver of a pretended right by one having no interest in land to prevent confirmation of a judicial sale is no consideration. Dave-zac v. Seiler (Ky.), 14 S. W. 590.
16Terre Haute, etc., Ry. v. Ry. Co., 81 111. App. 435.
17Berry v. Ry. Co., 89 Me. 552, 36 Atl. 904.
18 Gemberling v. Spaulding, 104 Mich. 217, 62 N. W. 342; McLane v. Mackey (Tex. Civ. App.), 59 S. W. 944. So a promise of a vendor to pay the widow of a vendee ten per cent. of the value of the land subject to the vendor's lien if she would be appointed an independent administratrix, so that she could convey the land without suit, is supported by a consideration. McLane v. Mackey (Tex. Civ. App.), 59 S. W. 944.
19Goodspeed v. Fuller, 46 Me. 141, 71 Am. Dec. 572 (for A's promise to pay-costs); Tarbell v. Linehan, 151 Mass. 448, 24 N. E. 325.
20Tarbell v. Linehan, 151 Mass. 448, 24 N. E. 325.
21 Ridenbaugh v. Young, 145 Mo. 274, 46 S. W. 959.
22 Beckwith v. Brackett, 97 N. Y. 52. 23Timmons v. Boyd, 89 S. Car. 11, 71
S. E. 298.
24 A, an insurance company indebted to B on a policy, promised to pay the expenses if B would sue the railroad company for the negligence causing loss on the policy. Norwich, etc., Ins. Co. v. Stang, 9 Ohio C. D. 576.
25 Wells v. Mann, 45 N. Y. 327, 6 Am. Rep. 93.
26 Gaar v. Vanhook, 162 Ky. 332, 172 S. W. 680. 27 See Sec. 719 et seq.
1 Moore v. First National Bank, 139 Ala. 595, 36 So. 777; Marshalltown from competition in business;3 or to refrain from accepting an offer made by a third person, which offer the promisor wished to accept;4 a promise not to engage in practice as a physician in a certain territory;5 or to "pool" stock belonging to different owners,6 are valuable considerations. The act of a saloonkeeper in retiring voluntarily is sufficient consideration for the promise of other saloonkeepers to pay him a certain sum of money if more saloonkeepers are already in business than will be allowed by law.7
Stone Co. v. Mfg. Co., 114 la. 574, 87 N. W. 496; Camden v. Dewing, 47 W. Va. 310, 81 Am. St. Rep. 797, 34 S. E. 911.
2 United States. Kearney v. Taylor, 56 U. S. (15 How.) 494, 14 L. ed. 787; Wicker v. Hoppock, 73 U. S. (6 Wall.) 94, 18 L. ed. 752.
Illinois. Garrett v. Moss, 20 III. 549. Massachusetts. Phippen v. Stickney, 44 Mass. (3 Met.) 384.