## Facts

- Henry H. Sawyer gave the plaintiff, Hay, a 15-day bond; the defendant, Mrs. Fortier, signed the bond as surety.
- Sawyer failed to satisfy the bond’s conditions, and Hay (through counsel) notified Fortier of her liability and demanded payment.
- On February 4, 1915, Fortier’s attorney wrote Hay’s attorney stating Fortier would pay $100 the following week (if the papers were regular) and would pay the full remaining balance by payments, with the whole amount paid before Hay’s April term of court.
- Hay’s attorney replied, sent copies of the papers, and stated Hay would accept $100 on account if sent immediately and the balance on or before the first Tuesday of April.
- Fortier promptly paid the $100 but made no further payments by the first Tuesday of April or later.
- Hay waited until after the first Tuesday of April, and on June 1, 1915, brought an action of debt on the bond against Sawyer and all sureties, including Fortier.
- Fortier answered in the bond action; later, on November 3, 1915, that action was discontinued by agreement “without costs and without prejudice.”
- On November 4, 1915, Hay brought this separate action against Fortier alone, based not on the bond itself but on Fortier’s alleged “special promise” in the correspondence to pay $100 at once and the balance by the April term.
- The case was submitted on an agreed statement of facts, and Fortier’s defense was that the alleged special promise lacked legal consideration.

## Issues

1. Whether Fortier’s written promise to pay $100 immediately and the remaining bond debt by the first Tuesday of April was enforceable when the asserted exchange was Hay’s promise to delay suit on the bond.
2. Whether Hay’s actual forbearance from suit until after the agreed April date supplied sufficient consideration (or otherwise made the promise binding) despite Fortier’s argument that her promise merely concerned an existing debt.

## Decision

- Judgment was ordered for Hay.
- The court construed the correspondence and stipulated facts as showing: Fortier promised immediate part payment and payment of the balance by the April term in return for Hay’s forbearance from suing on the bond until after that time.
- Hay in fact forbore bringing suit on the bond until after the first Tuesday of April, consistent with the arrangement.
- A promise to give time for payment of a debt, followed by actual forbearance for the specified period (or a reasonable period if none is specified), is sufficient consideration for the debtor’s promise to pay; therefore Fortier’s special promise was enforceable.

## Legal Principles

- Forbearance to sue—where the creditor agrees to delay enforcement and actually delays suit as contemplated—can be valid consideration for a debtor’s promise to pay.
- A debtor’s or surety’s promise that merely restates an existing duty to pay does not automatically supply new consideration for a creditor’s return promise; however, the creditor’s actual forbearance can supply the needed legal detriment.
- When a creditor actually performs the requested forbearance, the debtor’s promise to pay by the agreed date may be enforced even if the creditor’s initial promise to forbear could be attacked as lacking consideration when viewed only at the moment of exchange.
- Discontinuance of a prior suit on the bond “without prejudice” does not bar a later action based on a separate, later promise concerning payment and time.

## Conclusion

The Maine Supreme Judicial Court enforced Fortier’s special promise to pay the bond balance by the first Tuesday of April because the parties’ correspondence supported an agreement for Hay to delay suit, and Hay actually did so; that actual forbearance supplied a sufficient basis to hold Fortier to her payment promise despite her consideration defense.


Hay v. Fortier, 102 A. 294 (1917)