Downing v. Funk

The opinion of the Court was delivered by

Gibson, C. J.

Some of the principles discussed here, are not. embraced by the assignment of errors; and as they have recently been settled in Clarke v. Russel at the last term for the Western District, I shall consider but the points immediately raised on the record. These arise not so much out of principles, as their application to the evidence. The consideration laid in the first count, is forbearance for a reasonable time; and in the second, for an indefinite time. To maintain these allegations, the testimony of two witnesses was adduced; the first of whom proved a promise to pay if the plaintiff ‘ would give time,’ and, in. a subsequent part of his examination a promise to pay if ‘ longer time’ were given. In common parlance the words longer time are as indefinite as the word time without an adjunct; and they are equivalent to it in strict meaning, the adjunct being redundant. The other witness testified to a promise to ‘ wait,’ without any adjunct whatever. The popular sense of this last word, when used nakedly and in reference to a debt, is precisely that of the word forbear, which, when unqualified by terms of restriction, has regard to a general forbearance. To the first prayer for a direction that definiteness and certainty, as opposed to the vague and the general, are necessary in the terms of any consideration, the Judge responded in substance, that a promise to pay in consideration that -the plaintiff would wait, forbear, or give time, indefinitely or for a reasonable time, at the instance and request of the defendant, would maintain the declaration. There certainly was no error in that; and the application of the principle he left on the evidence, to the proper judges of the meaning of the words. He went further, and intimated that a suspension of the right to sue the original debtor, ought to be an ingredient in the consideration — a position not sustained in Clarke v. Russel, as proper to be taken unless where the defendant’s promise, and not performance of it, is relied on as the consideration. He undoubtedly" went as far in the defendant’s favour, without trenching on the province of the jury, as the facts would permit.

The counsel prayed a further direction ; that a stipulation to pay on terms no more definite than waiting or forbearing for a time, or giving time, or a longer time, would not éntitle the plaintiff to. recover ; and that the téstimony of the two witnesses did not supply the certainty necessary in such a case. The- abstract proposition, • thus put, was affirmed; and its dependence on the evidence for matter of fact, was properly left to the jury. It is to be remarked that nothing was said by the witnesses about waiting for a timé, or giving some time; and that but one of them spoke of a proposal to give longer time. The same witness, however, testified in another part of his examination, that it was to give time generally; and the other witness, instead of the words ‘ give time,’ used the word ‘wait’ which has in country parlance, the same signification. There was evidence therefore on which the jury might find a promise in consideration of forbearance which was determined in Hamaker v. Eberly, 2 Binney 510, tobe equivalent to general forbearance; andas it does not seem to have been a point of defence at the trial, that the forbearance was not in faq.t at the instance and request of the defendants, we cannot entertain an objection on that ground here. The residue of the prayer — to say whether there was evidence of a joint promise — was properly denied, as one of the witnesses asserted it positively, and the other less pointedly; after which the matter became a question exclusively for the jury.

Judgment affirmed.