Brody v. Gabriel

[645]

BISHOP, J. pro tem.

*

Throughout defendant Jamieson’s testimony, his brief, and his oral argument to us, runs this refrain: “I have never received any benefit; the plaintiff never paid me anything.” This is in support of his contention that there was “lack of sufficient consideration,” for the eight promissory notes upon which the judgment was based. He sees nothing of significance in the finding, supported by uneontradicted evidence, “that in consideration of the execution of the said notes plaintiff agreed not to sue or take any other steps toward collecting certain obligations to plaintiff of one Stanley J. Mansfield, and plaintiff agreed to assign to defendants on payment of the sums represented by said notes, any and all money and security claims owned by plaintiff against said Stanley J. Mansfield. ...”

The principle that governs is well settled. We find this in

Stone

v.

Burke

(1952), 110 Cal.App.2d 748, 756 [244 P.2d 51, 56] : “The existence of a good consideration is not dependent upon the fact that a benefit should be conferred upon the promisor. It is sufficient that a ‘prejudice be suffered or agreed to be suffered’ by the promisee

(Millsap

v.

National Funding Corp.,

57 Cal.App.2d 772, 776 [135 P.2d 407]).”

A similar statement of the principle appears in

Lincoln Holding Corp.

v.

Levering

(1933), 219 Cal. 427, 429 [27 P. 74, 75], where the contention was that no consideration existed for the $2,500 note, given by the defendant, upon which the plaintiff was suing. The facts were that there remained unpaid a $5,000 note made payable to the plaintiff, by a third party, which the defendant had endorsed. The plaintiff accepted defendant’s $2,500 note in satisfaction of his obligation, and allowed the $5,000 note to outlaw. The Supreme Court stated: ‘ ‘ The plaintiff’s forbearance to sue on the $5,000 note was a prejudice suffered by it and alone was sufficient to constitute a good and valuable consideration for the new promise. (§ 1605, Civ. Code;