(64 Md. 275)

BOWEN, Sr., v. TIPTON.

Filed November 20, 1885.

1. CONTRACT-FORBEARANCE-AT REQUEST OF THIRD PARTY-WHEN THIRD PARTY IS LIABLE.

Forbearance by a creditor from enforcing any legal or equitable right against a debtor, at the request of a third party, who promises to pay the debt, is a good and sufficient foundation for an action against such third party to recover the amount of the debt

2. SAME DISCONTINUANCE OF SUIT.

Discontinuance of a suit already begun by a creditor at the request of a third party, and on his promise to pay the same, is forbearance, and a sufficient ground of suit against such third party.

3. SAME-ACTION MAY BE BROUGHT, WHEN.

When the creditor has done all that he promised to do, leaving the outstanding liability all on the other side, he may bring his action.

Appeal from circuit court, Baltimore county.

Wm. S. Keech and R. R. Boarman, for appellant.

John T. Ensor, for appellee.

IRVING, J. This suit was instituted upon an alleged promise of the appellant to the appellee to pay the appellee a certain debt of John Bowen, Jr., the appellant's son, in consideration of the appellee's forbearance of certain attachment proceedings about to be instituted by him. The first count in the declaration is in strict conformity with the form prescribed in article 75, § 22, subsec. 24, of the Code. The demurrer thereto, therefore, was properly overruled. The second count was somewhat more specific as to the character of the claim of the plaintiffs against the defendant, and of the suit about to be instituted, but alleged the promises of the defendant substantially as in the first count, and this abandonment of the plaintiff's attachment proceedings in consequence of said promise is distinctly avowed, and the failure of the defendant to pay notwithstanding such abandonment is similarly avowed; so that there was no error in the overruling of the demurrer to the second count. fact the demurrer was not pressed by the appellant in this court.

In

To sustain the plaintiff's claim against the defendant it was necessary to prove a subsisting bona fide claim against John Bowen, Jr., which plaintiff was about to sue for, in order to lay a foundation for the defendant's promise to pay it in consideration of forbearance. The existence of such claim being a thing to be found by the jury as the subject for forbearance, any evidence which would establish the claim as against John Bowen, Jr., in a suit against him, must, in the nature of things, be evidence in a suit of this kind to enforce a promise of payment in consideration of a forbearance to sue on such a claim. No higher grade of evidence could be required than would be necessary against the debtor. The admissions of the debtor, therefore, that he did owe the plaintiff the

amount claimed, or something in that neighborhood, was certainly evidence to go to the jury by way of establishing such claim. The plaintiff testified directly to the existence of the debt, and also the admission thereof by the debtor. The first exception, being to the admission of this as evidence, was properly overruled.

The plaintiff, after testifying to the amount John Bowen, Jr., owed him, proceeded to say that he put the claim in the hands of an attorney to collect, and that he brought two securities and executed a bond. This evidence is the subject of the second exception. In terms, the exception is to all this evidence; but we suppose it was intended to be confined to the statement that the bond was executed, without the production of the bond. The fact that two sureties were brought for the purpose of giving bond in attachment was clearly competent, and whether the simple fact that a bond was executed, as proceeding from this witness, was admissible, is rendered wholly immaterial by the evidence of another witness to the same fact at a subsequent stage of the case, which was admitted without objection.

The instructions granted and refused form the subject of the third exception. The first four prayers of the defendant, in varied form, seek to take the case from the jury, on the ground that there was no legally sufficient evidence to justify a verdict for the plaintiff. The court was clearly right in rejecting them. The proof was that John Bowen, Jr., owed the plaintiff, and the claim was placed in the hands of an attorney for collection, who exhibited the claim both to John Bowen, Jr., and John Bowen, Sr., and informed them of the consequences of the suit, which he was instructed to institute. After information of this claim from the attorney having it in hand for suit, the appellant obtained a bill of sale from his son John Bowen, Jr., for all his property. The appellee then went to see the appellant, and told him "he was going to send the sheriff up that day; that he was not going to stop for the bill of sale,—it was all a fraud." The appellant replied: "Don't you do nothing; there is nothing done against you; you keep quiet." Appellee said he did "not know what else it was done for, on the top of this notice to John Bowen, Jr. I am not able to lose the money," etc. Appellant replied: "I know you have been a great friend of Johnny's. Nothing is done against you; you ought to know what it is done for. You keep quiet, and you will have your money. I guess I am worth it." Appellee said he did not know whether he was or not, and then asked him to sign a note. Appellant declined, saying: "No, I sign no notes, but you shall have your money." Appellee then left, and, relying on that promise, called immediately at his attorney's, and stopped the proceedings, and did not send the sheriff up, as was to be done that very day. In addition to the testimony of the appellee and other witnesses, one William Stewart testified that John Bowen, Sr., told him "his son John owed Tipton a good deal of money," and said, "I told him he should have his money, and he shall have it." He also said if he "had let Tipton go on, he would have broken John up, and he wished he had let him do so." The appellant denies these conversations, and offers evidence of

a different character; but the question raised by the prayers depends entirely upon whether, assuming the plaintiff's evidence to be true, there was legally sufficient testimony to warrant a recovery by the plaintiff. We think there was, and that these prayers of the defendant were properly rejected.

Mr. Addison, in his valuable work on Contracts,-volume 1, p. 11, (8th Ed.)-states the law to be as follows: "Forbearance of legal and equitable rights forms a good consideration for an undertaking, and will make it binding; and this, even though no actual benefit accrue to the party undertaking. If the plaintiff, for example, at the request of the defendant, forbears to institute legal proceedings, or discontinues legal proceedings already commenced, against a third party for the enforcement of a lawful claim or demand, for any convenient or reasonable period, or suspends or withdraws an execution or a distress against the goods or person of such third party, the suspension or withdrawal of such execution or distress, or the forbearance of further proceedings, forms a sufficient consideration for a promise by the defendant to pay money to the plaintiff, or to satisfy the full amount of his claim." It is to be noted that this statement of the law makes the actual forbearance, pursuant to request, and in reliance on the promise to pay for it accompanying the request, the consideration perfecting the contract or agreement so as to bind the person so requesting to pay for the forbearance accorded. Numerous authorities exist for this statement of the law, but we content ourselves with citing a few of them: Smith v. Algar, 1 Barn. & Adol. 603; Morton v. Burn, 7 Adol. & E. 19; Jones v. Ashburnham, 4 East, 463. It was the forbearance, this court says in Emerick v. Coakley, 35 Md. 190, which constituted the consideration in that case. Without forbearance in fact there could be no consideration for the promise. A written agreement could be so constructed as to coerce forbearance; but in parol agreements of this kind the mutuality is effected by actually according the forbearance in pursuance of the request and the promise. This is the substance of Lord DENMAN's decision in Morton v. Burn, 7 Adol. & E. 19. There it was objected that the contract declared on lacked mutuality; but this distinguished judge overruled the objection, and said unless the plaintiff did forbear he could not sue on the defendant's promise, and all that it was necessary to aver was that he had forborne, which was the condition to make the defendant answerable on his promise. Thus it appears that it is the act of forbearance which makes the consideration, when that forbearance is induced by the request of another and the promise to do something in return for it. A bare agreement to forbear, without forbearance in pursuance of it, would give no right of action against a party asking it and promising to pay for it. There would be nothing to pay for. In Chitty and Parsons it is laid down that an agreement to forbear is a good consideration, and this is consistent with all the authorities; for, of course, there must be a "consensus," or there is no contract to enforce. How that consensus is reached, and the contract perfected, is most philosophically stated in Anson, Cont. On page 74 of that work the law is thus

laid down: "When a consideration for a promise is an act, or forbearance, the contract is said to be made on a consideration executed. This arises when either the offer or the acceptance is signified by one of the parties doing all that he is bound to do under the contract so created." Again, on page 89, this author says: "A contract arises upon executed consideration when one of the two parties has, either in the act which amounts to a proposal, or the act which amounts to acceptance, done all that he was bound to do under the contract, leaving an outstanding liability only on one side." It is "a consideration executed upon request," and completes the agreement. It is the doing what was requested to be done, upon promise of payment for doing it, that makes the agreement. We think this is the generally accepted law, and it is certainly reasonable, and tends to the promotion of right. The case of Manter v. Churchill, 127 Mass. 31, seems to teach a different doctrine; but it introduces a refinement tending to defeat rather than to promote right. It is in conflict with all the other cases we have found, as we understand them.

The case before us clearly falls within the principles so clearly stated by Mr. Anson, and appositely illustrates the law as he states it. The appellee had a bona fide claim against appellant's son,-a claim admitted by the son, and therefore enforceable. Having taken a bill of sale for all his son's property, he did not want his title under the bill of sale attacked by an attachment, which the appellee informed him he was about to sue out in disregard of the bill of sale, which appellee charged to be fraudulent. Thereupon the appellant requested the appellee to do nothing, assuring him he should have his money, and that he was worth it. This was done in such a way and in such language that a jury might reasonably find it a promise to pay. Relying on it as such, appellee desisted, abandoned his attachment, and the appellant was not disturbed in the possession of the property acquired by the bill of sale, as, without the request and promise, he would have been on that very day. The appellee did all he was requested to do, "leaving the outstanding liability" only on the side of the appellant if the jury should find the facts as the evidence warranted. It thus appears to exactly fulfill all the requirements of the law of a "condition executed," as already stated. Testing the plaintiff's instruction by the law as we find it laid down, we think the criticisms upon it are not well founded. If the facts it enumerates are found by the jury, they are told that a sufficient consideration existed for the defendant's promise, if he did promise. They are not told they must find such promise from the facts, but if they found the facts stated they were at liberty to find a sufficient consideration for the promise or agreement. and if they found agreement, then the plaintiff was entitled to recover; The whole question was left to the jury, even to the construction of the language used, and whether that amounted to a promise and was intended as such. Being a contract wholly in parol, this was their province. 1 Chit. Cont. 103, 104. The objection that nothing was said in the prayer about having a reasonable time was unsubstantial, because the fact they wanted to find was entire abandonment of the attachment. The greater certainly includes the less. If the declaration alleged a rea

sonable time as that which was to be acceded, entire abandonment of the writ was at least equal to reasonable delay. We can find no ground of reversal in the granting of this instruction.

The fifth prayer of the defendant was properly rejected. By it the jury were to be instructed, in making up their verdict, not to regard or "take into their consideration the testimony of William Stewart as evidence tending to prove any contract on the part of the defendant to pay the debt of John Bowen, Jr., and for that purpose it was wholly insufficient in law." This prayer was grossly calculated to mislead the jury. If it did not contain all that was necessary, standing alone, to make an effectual contract between the parties, it certainly did tend to prove that the defendant had promised to pay the plaintiff his claim, and by it had secured a stoppage of proceedings which would have broken the son up. The evidence of the witness Stewart has heretofore been stated, and we need not repeat it. The jury would have understood the prayer as excluding that evidence altogether, and in fact it was erroneous in saying that Stewart's testimony did not tend to prove a contract. It certainly tended to sustain the plaintiff's statement on oath, and therefore tended to sustain a contract; and, even standing alone, it indicated that he had stopped the plaintiff from proceeding against the son, and breaking him up, by promising to pay him, though it may not have been alto. gether sufficient by itself to fully establish the contract. But this we are not called to decide. It was certainly corroborative, and the prayer was misleading. Judgment affirmed.

(61 Md. 321)

FRIEND and others v. FRIEND.

Filed November 20, 1885.

BOUNDARIES-DEED-LOCATION OF BOUNDS UNDER.

In the location of the boundary lines as called for by a deed, metes and bounds always control courses and distances; and the most material calls control those less material and certain. Inferential calls can only be used in location of a line when the natural or artificial calls are lost.

Appeal from circuit court, Garrett county.

Josiah H. Gordon, and Robert H. Gordon, for appellants.

R. T. Semmes, Thos. P. Peddicord, and F. A. Thayer, for appellee.

ALVEY, C. J. This is an action of trespass quare clausum fregit, brought by the appellants against the appellee. The claim and pretension of the respective parties made the case turn exclusively upon the correct location of the division line between the land of the plaintiffs on the one side and that of the defendant on the other. A warrant of resurvey was exev.1A, no.14-55