Clark v. Russel , 3 Watts 213 ( 1834 )

The opinion of the Court was delivered by

Gibson, G. J.

The proposed forbearance was evidently to be perpetual as to the obligors, the indulgence spoken of being referable to those who were to pay the debt. The defendant reciting that be and John Patterson had undertaken to pay the obligation of John and Joseph Patterson, requests indulgence; and for whom? Not for the obligors; but, as is apparent from the use of the word “ us,” for John and himself, who had agreed with Joseph .to substitute their joint responsibility for the joint and several responsibility of the obligors. It is undoubted thai had the plaintiff pressed his original security, Joseph might have been compelled to press the agreement of the defendant and John; and that the defendant might thus have been affected indirectly. Had he indeed proposed to contract but an indirect responsibility, it might have been intended that the indulgence sought as a consequence was to follow the nature of it. But he proposed positively and directly to pay the debt as soon as circumstances would permit; and in the absence of an intimation bearing the other way, it is reasonable to infer that the indulgence was meant .to correspond with the liability proposed as the consideration of it. The responsibility proposed therefore being direct, the indulgence was also to be direct. But not only was indulgence to be extended to the new contractors, but also forbearance to the original obligors as necessary to carry out all the parts of the arrangement. It was for the benefit of the latter that the defendant had come into the transaction; and they could be benefited as obligors but by going out of it at least for a time. But this implied condition of forbearance being general, is also perpetual; as was determined in Haymaker v. Eberly, 2 Binn. 510, where it is said, that a promise to forbear in general, without adding any particular time, is to be understood a total forbearance. The plaintiff then could accept the defendant’s proposal but on the conditions expressed or implied in it; and having violated one of these by recurring to the Messrs Pattersons oh the original security, he has failed to perform the consideration of the defendant’s promise, and cannot maintain an action on it.

The decision might be rested at this point; but a principal exception below, and therefore necessary to be decided here, is, that taking the defendant’s proposal of forbearance to be such as the judge assumed it to be, yet it does not appear to have been accepted ; for the plaintiff certainly cannot reserve himself for events and choose his time-to pursue the principal or the guarantee, as the solvency of the one or the other may dictate. There must be a bona fide forbearance at the defendant’s instance and request. The only case which might be thought to conflict with this, is Yard v. Eland, 1 Lord Raym. 368, in which an exception was taken to the declaration, “ that it is not averred that when the defendant desired a day of payment the plaintiff consented to give it him; but it is only said quod, assumptioni fidem adhibens, he forbore, so that the defendant might remain in fear all the time, and the consideration then fails. But to this it was answered by the court, that “it is averred the plaintiff forbore, &c. which is sufficient consent.” But it is to be remarked that this was said on an exception to the declaration, and it amounts to no more than that for purposes of pleading; performance fidem adhibens assumptioni is equivalent to performance at the defendant’s instance and request; for no one would pretend that forbearance induced by any other cause would charge him. The court never meant to say that. In fact the words literally import that the act was done on the credit of the defendant’s assumption, which is but another form of saying it was done at his instance. On the other hand it is not essential that the plaintiff should have bound himself to forbear or stay proceedings on the original security so as to give an action for a breach of promise. Such an agreement would undoubtedly be a valid consideration, and might be so laid, according to the precedents in cases of mutual promises which are reciprocally the consideration of each other, and which must therefore be simultaneous, concurrent and equally obligatory: but where the consideration is not promise for promise, less than a positive engagement to do an act which, when done, is to be the meritorious cause of the promise, may be a sufficient consideration for it. A positive act is more evincive of the distinction than a negative one. If I promise my neighbour to compensate him if he will do a specific act of service for me, and he does it in consequence, he may maintain an action though he had not bound himself to do it. The consideration of such a promise belongs to the class called executory, the promise itself being in its nature conditional. But what if the defendant should desist, having performed the act in parti He would forfeit his interest in the promise ; neither could he recover a quantum meruit; and the parties would be where they began. But the promissor may have sustained damage or at least disappointment by the other’s default. He undoubtedly may; but it is his folly not to guard against it by exacting a mutual engagement instead of making a conditional one, which leaves the party employed to earn the promised reward or not at his pleasure. Now the condition of forbearance belongs to the executory class, being usually so stated in the precedents; and it differs in no particular from the instance put, except that the act is of a negative instead of an affirmative nature; and it is this negative nature, rendering as it does the motive of the act equivocal, that induces the mind to hesitate. It might be supposed, from an expression of the judge who delivered the judgment in Bixler v. Ream, 3 Penns. Rep. 285, that a positive engagement to forbear was thought indispensable in all cases; but it is intimated in the succeeding sentences that actual forbearance at the instance of the defendant may also be sufficient, on the principle that a single spark of benefit received on the foot of the promise is a valid consideration. But in the actual state of our law on the subject, being without that part of the statute of frauds which is interposed for the protection of third persons elsewhere, policy dictates, in the absence of such an agreement, that clear and satisfactory proof be exacted that the request was in fact the exciting cause. The question then is, whether it sufficiently appeared in the case on hand that the plaintiff had forborne at the defendant’s instance, in order to warrant the direction, and verdict produced by it. The evidence consisted of the defendant’s letter of request; the original obligation with separate recoveries on it; and parol proof that the obligors had continued to be in good credit till the suits were brought. There were no extrinsic circumstances to show that the plaintiff’s forbearance had not been merely voluntary ; and there is nothing in the nature of the act itself to indicate the motive for it. Positive acts, as already said, are less equivocal, and usually exhibit the exciting cause of their performance, as in the case of delivery pursuant to a sale of goods ; but negative acts, unconnected with circumstances of explanation, and more particularly acts of forbearance, are referable to no particular cause: and such is their legitimate effect after the reception of a proposal not responded to, as was the case here, by word, deed, or sensible change of action. Who can say that the plaintiff would have pressed the Messrs Patterson at an earlier day if no overture for indulgence had been made 1 • To avail himself of a proposal received without reply, he ought to have shown a discontinuance of measures demonstrative of an immediate resort to compulsion ; or at the very least, that he had continued to forbear while the obligors were notoriously in failing circumstances. Of all such circumstances, the case was destitute; and even if there had been evidence to raise the question of assent to the defendant’s proposal, it ought to have been left to the jury as an open one, instead of the positive instruction given that the defendant was bound to pay the bond according to the terms of his letter.

Judgment reversed.