too was held to be no consideration. In Schroeder v. Fink, the defendant was sued on a promise to pay a note, executed by his deceased father, in consideration of the plaintiff's surrendering the note and promising to give no trouble. The deceased left no estate out of which the note could have been paid, and hence there was no consideration for the defendant's promise.

The ruling of other authorities is that the forbearance to sue on a claim made in good faith, or the compromise of such a claim, is a sufficient consideration, although the claim be in fact wholly unfounded. In Callisher v. Bischoffsheim.9 the Court said that, if a party "bona fide believes that he has a fair chance of succeeding, he has a reasonable ground for suing and his forbearance to sue will constitute a good consideration. When such a person forbears to sue, he gives up what he believes to be a right of action and the other party gets an advantage, and instead of being annoyed with an action, he escapes the vexations incident to it."

If a claim for a sum of money alleged to be due by a third person is assigned to one who believes it to be valid, and the assignee agrees with the third person to give up his right to demand certain property upon the faith of that person's promise to pay the claim, then the question whether the claim was originally valid or not is immaterial, and the surrender by the assignee of his right to the property is a consideration for the promise to pay the claim.10

Actual forbearance to sue in reliance on the promise made in consideration of it is sufficient It is not necessary that

760 Md. 436. See also Gist r. Cockey, 7 H. & J. 135; Busby v. Conoway, 8 Md. 55.

8 Wahl. Barnum, 116 N. Y. 87; Bowers Dredging Co. v. Hess, 71 N. J. 327; Prout v. Pittsfield Div., 154 Mass. 450; Ostrander v. Scott, 161 II. 339. Cf. Union Bank v. Geary, 5 Peters, 99.

9 L. R. 5 Q. B. 449, per Cockburn, C. J. In Er parte Banner, L. R. 17 Ch. D. 480, Brett, L. J., doubted whether giving up what was clearly an unfounded cause of action would support a compromise. But in Miles v. New Zealand Co., L. R. 32 Ch. D. 266, it was said that Callisher v. Bischoffsheim was the law of the Court.

10 Alexander v. Md. Trust Co., 106 Md. 170.

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there should be an express promise to forbear.11 In Bowen v. Tipton, A. had a bona fide claim against C. and put it in the brands of a lawyer for collection. The lawyer exhibited it to. C. and to B., his father, and told him of the suit he was instructed to institute. Thereupon B. took from his són a bill of sale of the latter's property. After hearing of this, A. called upon B. and said, "that 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." B. replied, "You keep quiet, and you will have your money; I guess I am worth it." A., relying on this promise, directed that further proceedings be stopped, and this forbearance was held to be a sufficient consideration for B.'s promise.

If there be an express promise to forbear, it need not be for a definite time. In such case a reasonable time is implied.13

Compromises of litigation pending is generally sustained if the suit was instituted in good faith, and the fact that there was no substantial ground for it does not render the agreement invalid for lack of consideration.14

Family compromises of disputes are especially favored, and the Courts seem to recognize the soundness of the maxim, that dirty linen should be washed at home.15 When an heir or distributee threatens to contest a will, a promise to let

11 Crears v. Hunter, L. R. 19 Q. B. D. 341; Edgerton v. Weaver, 105 Ill. 43. Contra: Manter v. Churchill, 127 Mass. 31.

12 64 Md. 275.

13 Traders' Nat. Bank r. Parker, 130 N. Y. 415; Howe . Taggart, 133 Mass. 284. But a promise to forbear for such a time as the creditor shall choose is not a consideration, as this leaves him free to proceed forthwith. Strong v. Sheffield, 144 N. Y. 392.

14 McClellan . Kennedy, 8 Md. 230; Feeter v. Weber, 78 N. Y. 334; Clark v. Turnbull, 47 N. J. L. 265; Gloucester Isinglass Co. v. Russia Cement Co., 154 Mass. 92: 12 L. R. A. 663; Murphy v. Murphy, 84 Ill. App. 292; McClure v. McClure, 100 Cal. 339.

15 Hartle v. Stahl, 27 Md. 157; Chandler v. Pomeroy, 143 U. S. 318; Moss v. Cohen, 158 N. Y. 240; McDale v. Kingsley, 163 Ill. 433; Smith v. Smith, 36 Ga. 184; 2 Pomeroy, Eq. Jur. § 850. Compromises in the nature of family arrangements are upheld when the same consideration between strangers would not be sufficient. Williams v Shipley, 67 Md. 373.

him share in the estate if he desists is valid, provided his claim was not merely vexatious. The fact that there was no reasonable ground for the contest does not invalidate the compromise:16

When A. promises to pay a debt due by C. in consideration of forbearance on the part of a creditor of C., the promise is within the fourth section of the Statute of Frauds and must be in writing.17

It seems that if the agreement of compromise is not carried ont by the payment or tender of the money, then the original cause of action is revived, and the promisee may sue either upon that or upon the new promise. 18

A

$37. Promise to do the Impossible or the Unlawful. promise to do a thing impossible in fact or in law is not a consideration. Impossibility in fact means an objective. physical impossibility existing at the time the agreement is made.1 If the impossibility is not obvious, then the contract may be avoided on the ground of mistake.2 If perform

16 Blount . Dillaway, 199 Mass. 330; 17 L. R. A. (N. S.) 1037. See also Grandin v. Grandin, 49 N. J. L. 508; Pool . Docker, 92 Ill. 501; note as to validity of contract not to contest probate of will appended to Grochowski r. Grochowski, 13 L. R. A. (N. S.) 484.

17 Thomas v. Delphy, 33 Md. 373.

18 Brown . Spofford, 95 U. S. 483; Early r. Rogers, 16 How. 599. See post as to Accord and Satisfaction.

1 The old case of Thornborrow . Whiteacre, 2 Lord Raymond, 1164, illustrates an objective impossibility. Defendant in consideration of 2s. 6d. paid and £4, 17 s. 6 d. to be paid on performance agreed to give plaintiff two grains of rye corn on Monday, 29th March, four on the next Monday, eight on the succeeding Monday, and so on for one year, doubling on each Monday the amount delivered on the preceding Monday. It was found on calculation that the whole quantity to be delivered would be upward of half a million quarters, so that, as counsel said, all the rye grown in the world would not come to so much. The Court held that the defendant ought to be made to pay for his folly, but it is obvious that the agreement was void. With this may be compared James v. Morgan, 1 Levinz, 111, where a horse was sold for one barley-corn for the first nail in the shoes, two for the second, four for the third, and so on, doubling for the successive nails. A verdict for the value of the horse was directed.

2 See post, Part i, ch. 5.

3

ance of a promise becomes impossible after the contract is made, it is sometimes a ground for discharge. But a subjective impossibility; i. e., a promise to do that which is in itself possible but which the promisor cannot do, does not avoid the contract.

A promise to do what cannot legally be done by the promisor is an illusory consideration. So an undertaking by a trustee to suspend a sale which had been decreed is not a consideration for a promise to withdraw an appeal, because the trustee had no power to suspend the sale.*

$ 38.

Performance of Duty-Payment of Part of Debt. A promise to do, or actually doing, that which a man is already legally bound to do is not a consideration. Thus when the fees of an officer or of a witness are fixed by law, a promise of extra compensation is void because the counter promise to do the work or give the evidence is only a promise to do that which the promisor was already bound to do.1 So a promise to pay an officer for making an arrest is also for this reason without consideration.2

It will be seen presently that there are certain limitations or exceptions to the generality of this rule.

Payment of smaller sums in satisfaction of larger. One application of the principle that the performance of an exist ing obligation is an illusory and unreal consideration is the rule, that the payment of part of a liquidated and undisputed debt, then due, is not a consideration for a promise of the creditor to accept such part payment in satisfaction of the entire debt, although the debtor was induced to make the payment by reason of the promise. This rule is well estab lished and has a long and unimpeachable pedigree. When a

3 See post, Part vi, ch. 5.

4 Ward v. Hollins. 14 Md. 154. Cf. Folck r. Smith, 13 Md. 85: Hopkins . Hinkley, 61 Md 584.

1 Lucas v. Allen, 80 Ky. 681.

2 Smith v. Whildin, 10 Pa. St. 39.

3 Pinnel's Case, 5 Coke's Rep. 117 (1602); Foakes r. Beer, L. R. 9 App. Cas. 605; Commercial & F. Bank r. McCormick, 97 Md. 703; Rohr . Anderson, 51 Md. 305; Geiser r. Kirschner, 4 G. & J. 305,

smaller sum than that due is paid under an agreement to accept it as full satisfaction, there must be, in order to effectuate the agreement either a consideration for giving up the residue or a release under seal or an express forgiveness of the residue of the debt.

The rule is certainly unreasonable and enables a creditor to violate his solemn promise upon the faith of which the part payment was made. It has been abrogated by statute in a few States, and in some others the Courts have refused to follow it.1

5

A sufficient consideration for giving up the residue of the debt occurs when anything which the law regards as of value is superadded to the part payment. An agreement between a debtor and creditor by which the former agrees to pay and the latter to accept a smaller sum than the amount of the debt before its maturity in full satisfaction is supported by a consideration. "If the obligor pay a lesser sum either before the day or at another place, than is limited by the condition, and the obligee or feoffee receiveth it, this is a good satis

and note; Chicago, &c.. R. Co. v. Clark, 178 U. S. 353; Farmers, etc., Ass'n. r. Cain, 224 Ill. 599; Chambers v. Niagara Ins. Co., 58 N. J. L. 216; Fuller v. Kemp, 138 N. Y. 231; 20 L. R. A. 785. It makes no difference that the creditor executes a receipt stating that the amount paid is full satisfaction. Campbell v. Booth, 8 Md. 115; Bingham t. Browning. 197 Ill. 122. But in some States effect is given to a receipt in full. Flynn . Hurlock, 194 Pa. 462; Holmes . Holmes, 129 Mich. 412. When a debtor to whom a receipt in full, after a part payment, has been given is thereby enabled to sell his stock of goods to a third person, the creditor is estopped to make any claim against the goods. Ebert v. Johns, 206 Pa. 395. It was held in Engbretson v. Seiberling, 122 Iowa, 522, that when the debtor is insolvent the agree ment of the creditor to accept a small sum in satisfaction is valid. No reason is given for this except that the rule in question is "purely technical".

4 It appears that statutes have changed the rule in Alabama, California, Georgia, North Carolina and Virginia. See Herman v. Schlesinger, 114 Wis. 382. It was not followed in Ford v. Hubinger, 64 Conn. 129; Clayton r. Clark. 74 Miss. 499; 37 L. R. A. 771.

5 Very r. Levy, 13 Howard, 345; Maddox r. Bevan, 39 Md. 499.

6 Chicora Fer. Co. v. Dunan,, 91 Md. 144; Singer . Lee, 105 Md. 663; Savage r. Everman, 70 Pa. 319.