Kornbrodt v. Equitable Trust Co. , 137 Or. 386 ( 1931 )

Petition for rehearing denied September 22, 1931 ON PETITION FOR REHEARING (3 P.2d 127) In a petition for rehearing filed herein, plaintiff contends that, since the rule is that a promise to forbear may be inferred from the fact of forbearance, as held in First National Bank v.Cecil, 23 Or. 58 (31 P. 61, 32 P. 393), there could have been no necessity for plaintiff, in stating his cause of action, to allege a promise upon his part to forbear. The rule that such a promise may be inferred from the fact of forbearance, where the question is in dispute, is a rule of evidence and not of pleading. This was an action for breach of contract and before an action of that character will lie it must appear from the complaint that there was a valid and enforceable contract in existence between the parties and that the defendant has breached the contract. A promise by one party is a good consideration for a promise by another but in such case the promise must be obligatory upon both parties so that each party will be bound. There must be a consideration for every contract and unless the contract is one which imports a consideration, such as a deed, bill of exchange, negotiable promissory note or other like instrument, the consideration must be proved and consequently it should be stated. Bliss on Code Pleading, § 268.

In the instant case plaintiff, instead of alleging that he accepted the offer alleged to have been made by defendant and made the promise requested, merely alleged that he did the thing which defendant requested him to do, namely, to forbear the doing of certain acts. So far as the allegations of the complaint are concerned, plaintiff may have refused to accept the offer made and subsequently, on his own volition and for reasons not stated, complied with the request and forbore to do the thing which had been requested and refused. In such case, neither party would be bound to perform. This falls far short of constituting a contract or of stating any consideration upon which any valid contract could be based.

In holding that, because of plaintiff's failure to allege his acceptance of the offer alleged to have been made by the defendant, the complaint was defective, the court was applying and following the rule that has been settled by a long line of decisions in this state and which is as binding upon the court as upon litigants.

Petition for rehearing denied.

BEAN, C.J., ROSSMAN and KELLY, J.J., concur.