Martin v. Black's Ex'rs , 20 Ala. 309 ( 1852 )

DAEG-AN, C. J1

This was assumpsit brought by the plaintiff against the defendants, to recover of them the amount of a note executed by "William W. Black to the plaintiff, which the defendants’ testatrix promised to pay. The facts on which the plaintiff relies to charge the. defendants are these: William W. Black died in Lowndes county, and letters of administration were granted to one Harris on the first of October, 1847. About the 18th of October of the same year, the defendant’s testatrix promised in writing that, if the plaintiff would not proceed to subject the property of the estate to the payment of his debt until the crop of cotton made in the year 1847 on the plantation of the deceased was sold, which probably would be during the ensuing Spring, she would pay the debt. The plaintiff forebore to sue the estate, and in November, 1848, brought this action. The court charged the jury that the promise was without consideration, and therefore void.

The rule of law is well settled, that if one promise to pay the debt of another ain consideration of forbearance to sue, that such promise, if reduced to writing, is valid in law, being founded on sufficient consideration. Bacon’s Abr. vol. 1, title assumpsit, page 425; Story on Contracts, §§, 431, 435, 438. On the other hand, it is equally well settled, that forbearance to sue impliesjthe right to sue, and consequently, if the party to whom the promise to pay is made, had not the legal right to sue at any time during which he promised to forbear suit, then the promise to pay is without consideration, and consequently void. Bacon’s Abr. Supra; 4 East, 455.

Applying these two well settled principles to the promise under consideration, we think the court erred. It is true, that under our law a creditor of an estate has not the right to sue the administrator, until after six months from the grant of administration; consequently the plaintiff in this case could not have sued until April, 1848; but after the first of April, he had the right to sue, and according to the bill of exceptions, he promised to forbear suit during the Spring of 1848; he therefore promised not to sue during the months of April and May after his right to sue was complete. This was a sufficient consideration.

2. We think there was no error in the second charge that was given. The second promise relied on by the plaintiff was not reduced to writing, and we cannot see that it was beneficial to the defendant; therefore it-is within the statute, and void. Brown v. Barnes, 6 Ala. 694. Another reason that would render the second charge harmless, if not technically correct, is, that the second or verbal promise was to pay out the assets of the estate, as we construe it; and such a promise will not bind the administrator personally, when it is not founded on some new consideration.

For the error in the first charge, the judgment is reversed and the cause remanded.