Golding v. McCall

5 Ga. App. 545 | Ga. Ct. App. | 1909

Hill, C. J.

(After stating the foregoing facts.)

1. The withdrawal, by the two creditors of the husband’s estate, of the objections filed to the allowance of the year’s support to the. widow and her minor children constituted a valid consideration for the note made by the widow. Generally "a consideration is valid if any benefit accrues to him who makes the promise, or any injury to him who receives the promise.” Civil Code, §3657. It was a benefit to the widow for the two creditors of her husband’s-estate to withdraw objections made to her allowance for a year’s support. While an allowance for year’s support was prior in dignity to the debts against the estate, yet it is not improbable that the amount of the allowance might have been reduced if these objections had been insisted on. Certainly the widow would have been put to some expense in maintaining the amount of the allowance. The creditors of the estate had a legal right to contest the allowance of the year’s support, and their forbearance to do so was a surrender of a legal right for the benefit of the widow. “A waiver of a legal right is a sufficient consideration, for a promise made on account of the waiver,” and “forbearance of legal proceedings by a person entitled to sue is a valid consideration for a promise, and this is true although the promisor might have prevailed in the suit.” 5 Lawson’s Eights and Eemedies, §2253; 1 Addison on Contracts, §14; Johnson v. Redwine, 98 Ga. 112 (25 S. E. 924). The contention that the agreement of the creditors to withdraw their objections to the allowance of the year’s support, in consideration of the note made to them by the widow, was a fraud on the other creditors of the husband’s estate, and was against public policy, we do not think well founded. This is not a case where a debtor insolvent or in failing circumstances makes a secret arrangement with one creditor in fraud of other creditors. It is a case where two creditors of a common debtor make an adjustment of their respective claims against the debtor. This is á matter that can not affect the rights of any of the creditors except those who are parties to the agreement. We do not see any legal reason why one creditor of a common debtor could not reduce his claim, or even surrender it entirely, for the benefit of another creditor. There is no allegation of fraud in the procurement of the note. The widow thought that the withdrawal of the objections filed to the allowance of her year’s support was worth paying for and would accrue to her benefit. She therefore bought off, by her conditional note, the two creditors of her husband’s estate who were contesting the allowance to her of the year’s support. The law will not relieve her of her contract, freely and voluntarily made, by which she received some benefit.

2. It is contended by plaintiff in error that at the time she gave her note, it was without consideration, because the payee, McCall, was not then a creditor of her husband’s estate, he having been .paid in full by the administrator. This contention is not supported by the evidence. The payment to McCall of $48.1,31 by the administrator was not in fact a payment, but only an advance or loan by the administrator on the debt held by McCall. The latter gave his due bill for it, and was subsequently compelled to-repay to the receiver of the assets of the estate $225 of the amount advanced or loaned to him by the administrator. His receipt to-the administrator, although allowed as a voucher, was not conclusive, and, in the light of the facts, was in fact nqt the truth.. When McCall 'was sued by the receiver on his due bill to the administrator and compelled to pay back $225 of the $481.31 which had been advanced to him by the administrator on his debt against the estate, this left the estate indebted to him for this amount of' $225. There is no evidence that this amount could have been collected out of the estate of W. T. Golding; on the contrary the evidence shows that the estate was insolvent; hence the very contingency arose which was the condition of liability expressed in her note. We do not see why plaintiff in error was not liable on her note for the full sum of $225. But the learned judge,’ (trying the case without the intervention of a jury) found against her only one half of her note, or $100 less than she had agreed to pay.

3. The fact that the creditors of the estate of W. T. Golding-settled with the surety on the administrator’s bond did not increase-the defendant’s risk on the note to McCall. On the contrary, it-diminished the amount of her ultimate liability, as it left that much less for her to pay. There is no evidence that the whole indebtedness of the estate could have been made out of the surety; and, in view of the settlement, authorized by the court, it is fair to-presume that it could not. The agreement made with the receiver,, that McCall should retain, out of the sum of $481.31 advanced to him by the administrator, his pro-rata share of the amount paid to the ordinary for the use of the creditors, was also for the benefit of the defendant, as it decreased the amount of her ultimate liability on her note.

The fact that McCall has not paid to the receiver the $225,. which he agreed to pay in settlement of the suit against him on. his due bill for $481.31, can not be set up in this suit as a reason why the defendant should not comply with her contract. It is-true that he has only paid $50 of this $225, but he has given his written obligation to pay the whole amount; and there is no allegation or evidence that he is not solvent, or that the balance of the-$225 is not collectible. Judgment affirmed.