Parrino v. Rallis

THE COURT.

The above action was brought upon a promissory note executed to plaintiff by defendants T. M. Rallis and L. Rallis, his wife. The instrument, which was for $1303, was dated August 2, 1926, and payable with interest on August 1, 1927. Some time before its date defendant T. M. Rallis became indebted for money loaned and services rendered by the plaintiff and others. The latter assigned their claims to the plaintiff, and the note was for the amount of the claims.

[366]

Defendant L. Rallis alleged, “that neither at the time of the execution of said note nor at any other time was there any express agreement between the parties for a forbearance of the collection of the sum then owing to plaintiff; nor was there at any of said times any express agreement to ' extend the time of payment of said sum; nor was there any intention by the parties to make the forbearance of collection or the extension of time of payment any part of the consideration for the execution of said note by said defendant L. Rallis”.

Defendant T. M. Rallis made no defense to the action.

The above allegations were found to be true, and judgment was accordingly entered against T. M. Rallis and in favor of L. Rallis, his wife. The plaintiff appealed from the latter portion of the judgment, and as grounds therefor it is contended that the court’s finding, which followed the language of the above defense, is unsupported by the evidence.

Forbearance is sufficient to constitute a valid consideration, although it must be under an agreement to forbear, mere forbearance alone being insufficient

(Estate of Thomson,

165 Cal. 290 [131 Pac. 1045]). And it is not necessary that one signing a note as an accommodation maker or as a surety derive any benefit therefrom so long as the payee of the note suffers a detriment

(Westphal

v.

Nevills,

92 Cal. 545 [28 Pac. 678]). While the record here discloses no evidence of an express agreement by the plaintiff to forbear, such an agreement might be implied from the taking of a note payable at a future time as this suspends action on the original debt (8 Cor. Jur., Bills and Notes, p. 237;