6 Neb. 444 | Neb. | 1877
The only question in this case is whether the petition states a good cause of action.
The instrument on which the action was brought is an undertaking, in the usual form, for staying executions in probate courts; and, except as to the time within which it was executed and approved, conformed strictly to the requirements of the statute. Undoubtedly, in order to operate as a statutory stay, the undertaking must be executed within the time fixed by law. And, without the consent of the plaintiff, the court has no authority to accept an undertaking tendered after that time. But that is not this case. Here it appears that the defendant in the court below, in consideration of the recall of the execution then in the hands of the sheriff for service, and the allowance of a stay “ for one year from the date of said judgment, * * * * then and there undertook and promised in writing to pay the said judgment, interest, and costs, and accruing costs.”
It further appears that, in pursuance of this agreement, the execution was recalled and a stay actually had for the whole of the stipulated time. This was a sufficient consideration for the promise made by Cameron. Chitty on Contracts, 32-37, and notes. 1 Parsons on Contracts, 365. And, having received the benefits of the contract, he cannot now be permitted to repudiate the obligation which he thereby assumed. There is no principle of law behind which such a breach of good faith can find protection. If an authority were needed to support so plain a proposition, it is to be found in Duckwall v. Rogers, 15 Ohio State, 544, which is precisely to the point.
There is no error in this record, and the judgment of the district court is affirmed.
Judgment affirmed.
