§ 554. In the next place, as to forbearance. Forbearance to sue is a good consideration only when the party forbearing has a right to sue in his own name, either at law or in equity.1 Forbearance for a certain or reasonable time to institute a suit upon a well-founded claim, or even upon one which is doubtful,2 is a sufficient consideration to support a promise; since it is a benefit to the one party, and a prejudice to the other.3 If the time of forbearance be stated, it must be a reasonable time; and an agreement to forbear per breve aut paululum tempus, or pro aliquo tempore, will not be sufficient, inasmuch as the party promising may, in such case, sue immediately after the promise is made.4 The law on this subject has been thus stated: An agreement to forbear for a reasonable time, or for a fixed period, followed by such forbearance, constitutes a good consideration for a promise by a third person to pay the debt,5 but otherwise, where the time of forbearance is wholly vague and undetermined.1 The mere indefiniteness of the agreement, as to the time of forbearance, will not, however, invalidate it. If, therefore, the agreement be to forbear for a reasonable time, it is sufficient, since the court will decide, when the action is brought, whether the period of time actually allowed is a reasonable time.2 So, also, if no agreement be made as to the length of time during which the promisor will forbear, the law will presume that he promises to forbear for a reasonable time; and this is sufficiently certain, since Id cer-tum est, quod certum reddi potest 3 Thus, if one promise to pay the debt of another, in consideration that the creditor "will forbear, and give further time for the payment" of the debt, it is a sufficient consideration, though no particular time of forbearance be stipulated; provided the declaration aver, that he did actually forbear from such a day to such a day,4 and the actual time be reasonable. It is not, however, necessary, in such a case, that the actual time during which forbearance was exercised should be set forth in the declaration. A general allegation of forbearance will be sufficient, if it be proved that it was for a reasonable time.5 A general forbearance to sue is considered as a perpetual forbearance, and therefore a good consideration.6 But a forbearance to sue without any promise is not a good consideration; it may in connection with other facts be evidence of an agreement to forbear, and, as such, form a good consideration for a promise.7 Nor is there any legal consideration in the case of a promise for a past forbearance.1
1 Violett v. Patton, 5 Cranch, 142, 152; 2 Peters, Cond. 214; Carnegie v. Morrison, 2 Met. 381; Maud v. Waterhouse, 2 C. & P. 579; Smith v. Algar, 1 B. & Ad. 603; Emmett v. Kearns, 7 Scott, 687; 7 Dowl. P. C. 630; 5 Bing. N. C. 559.
2 See George v. Harris, 4 N. H. 533; Cong. Soc. in Troy v. Perry, 6 N. H. 164; Troy Academy v. Nelson, 24 Vt. 189; Watkins v. Eames, 9 Cush. 537. See Ayers's Appeal, 28 Penn. St. 179 (1857).
3 Bryant v. Goodnow, 5 Pick. 229; Farmington Acad. v. Allen, 14 Mass. 172; Homes v. Dana, 12 Mass. 190; Watkins v. Eames, 9 Cush. 537; Ives v. Sterling, 6 Met. 310; Thompson v. Page, 1 Met. 565; post, § 570, 577; Mirick v. French, 2 Gray, 420; Robertson v. March, 3 Scam. 198; Barnes v. Perine, 9 Barb. 202.
4 Williams College v. Danforth, 12 Pick. 541; Munroe v. Perkins, 9 Pick. 305.
5 Farmington Acad. v. Allen, 14 Mass. 172; post, § 580.
1 Graham v. Johnson, Law R. 8 Eq. 36 (1869).
2 Blake v. Peck, 11 Vt. 483; Truett v. Chaplin, 4 Hawks, 178; Zane v. Zane, 6 Munf. 406.
3 Thornton v. Fairlie, 2 Moore, 397; Richardson v. Mellish, 2 Bing. 229; s. c. 9 Moore, 458; Bidwell v. Catton, Hob. 216; Stewart v. McGuin, 1 Cow. 99; Richardson v. Brown, 1 Cow. 255; Rippon v. Norton, Yelv. 1; Harris v. Richards, Cro. Car. 272; Elting v. Vanderlyn, 4 Johns. 237; King v. Weeden, Style, 264; Barber v. Fox, 2 Saund. 137, and note; Forth v. Stanton, 1 Saund. 211, and note; May v. Alvares, Cro. Eliz. 387; Com. Dig. Action on the Case, Assumpsit, B. 1, 2; Chapin v. Lapham, 20 Pick. 467; Blake v. Cole, 22 Pick. 97; Ward v. Fryer, 19 Wend. 494; Watson v. Randall, 20 Wend. 201. See Jennison v. Stafford, 1 Cush. 168; Giles v. Ackles, 9 Barr, 147; Rood v. Jones, 1 Dougl. (Mich.) 188; McKinley v. Watkins, 13 111. 140; Boyd v. Freize, 5 Gray, 553. Even though tho litigation has not been actually commenced. Cook v. Wright, 1 B. & S. 559 (1861). Or though it subsequently appears that the claim was unfounded. Ibid.; Callisher v. Bischoffsheim, Law R. 5 Q. B. 449 (1870). See Cooper v. Parker, 15 C. B. 822; Ockford v. Barelli, 25 Law Times (n. 8.), 504 (1871). The forbearance itself must be upon a legal consideration in order to be binding. Reynolds v. Ward, 5 Wend. 502; Parmelee v. Thompson, 45 N. Y. 58 (1871). Nor will the giving a new obligation, with additional security, for part of a debt avail as a consideration for an agreement to extend the time of payment of the residue. Gibson v. Rennie, 19 Wend. 389; Parmelee v. Thompson, supra.
4 Com. Dig. Action on the Case, Assumpsit, B. Lonsdale v. Brown, 4 Wash. C. C. 148; Sidwell v. Evans, 1 Penn. 385; Downing v. Funk, 5 Rawle, 69.
5 Oldershaw v. King, 2H.&N. 517; Thomas v. Croft, 2 Rich. 113; Downing v. Funk, 5 Rawle, 69; Clark v. Russel, 3 Watts, 213.
1 Crofts v. Beale, 11 C. B. 172; Mecorney v. Stanley, 8 Cush. 85; Walker v. Sherman, 11 Met. 170.
2 1 Roll. Abr. 26, 1. 50; Lonsdale v. Brown, 4 Wash. C. C. 148; Theme v. Fuller, Cro. Jac. 397; Beven v. Cowling, Poph. 183; Cowlin v. Cook, Latch, 151; s. c. Noy, 83; Anon., 1 Freem. 66; Com. Dig. Action on the Case, Assumpsit, B.; Hakes v. Hotchkiss, 23 Vt. 235.
3 Cowlin v. Cook, Latch, 151; s. c. Noy, 83; Therne v. Fuller, Cro. Jac. 397; Beven v. Cowling, Poph. 183; Mapes v. Sidney, Cro. Jac. 683; s. c. Hutt. 46; Hamaker v. Eberley, 2 Binn. 506; Maynell v. Mackallye, Style, 459; Barnehurst u. Cabbot, Hardr. 5; Clark v. Russel, 3 Watts, 213.