Page:Harvard Law Review Volume 10.djvu/143

117 FORBEARANCE TO SUE. I17 In Hewett v. Currier,^ it was held that forbearance by a sub- contractor to file a claim for a lien, to which he supposed himself entitled upon a building for which he had furnished materials, is a sufficient consideration for a promise by the owner to pay the amount due, though it afterwards appears that such sub-contractor was not entitled to a lien. And see Young v. French,^ and Fish V. Thomas.^ In Bellows v. Towles,* it was held that, if A honestly believes that he has good and reasonable ground to oppose the probate of a will on the ground of undue influence, a promise to pay him five thousand dollars if he will not make such opposition is binding, whether there was or was not any valid ground for opposing the will. This view brings the doctrine of " forbearance without suit " into harmony with that of a *' compromise of an existing suit," which it so much resembles. For it is well settled that a prom- ise to pay part of a claim by way of compromise of a pending suit is binding, even though the suit was not well founded, and the plaintiff therein would not have succeeded. In other words, the validity of the original claim, either in fact or in law, cannot be litigated in the suit for the compromise amount. Longridge v, Dorville; ^ Stewart v. Ahrenfeldt; ^ Feeter v. Weber; ^ Barlow v. Ocean Ins. Co. ; ® Grandin v. Grandin ; ^ Prout v. Pittsfield Fire Dis- trict.^^ What substantial difference is there between forbearance to further prosecute a suit, and forbearing to commence a suit at all? All the reasons which govern the one apply equally to the other. Still less does that difference seem, when we remember that a compromise, specifically so called, may be made before as well as after a suit has been commenced. Cook v. Wright; ^^ Easton v. Easton ; ^^ Grandin v. Grandin.^^ Is it not a distinction without a difference? Still more does forbearance to sue resemble a compromise when the agreement is to perpetually forbear, and the promise is to pay therefor a stated sum, without reference to the amount of the claim made. If the mere surrender of an unenforceable claim is a good 1 63 Wis. 387 (1885). ® 4 Denio, 189 (1847). '^^ 154 Mass. 453, and cases cited. 2 31 Wis. III. 7 78 N. Y. 334 (1879). iiiB. &S. 559. 8 5 Gray, 45. 8 ^ Met. 270 (1842). 12 112 Mass. 438. 6 5B. & Al. 117 (1821).
 * 55 Vt. 391 (1883). » 49 N. J. Law, 508 {1887). i« 46 N. J. Law, 538.