
    Johnes against Potter.
    
      Friday, April 7.
    
    In a declaration on a promise to pay, in consideration that the plaintiff would forbear to sue another it is sufficient to state, that that other was indebted without averring that the debt was then payable.
    An averment, that one was indebted is not a ground to infer, that the debt was then payable.
    An agreement to forbear to sue for a debt payable in future, is a good consideration for a promise by a third person to pay such debt.
    In Error.
    ERROR to the District Court of the city and county jPhiladelphia, in which a bill of exceptions was returned with the record.
    
      Richard C. Potter, the plaintiff below,
    brought this action on the case against Charles Johnes, and a declaration ,, , . . . .i filed containing three counts.
    The first count stated, that Whereas, a certain Benjamin Lambert, late of the city of Philadelphia, on the nineteenth day of April, in the vear of our Lord one thousand eight hundred and sixteen, was indebted to the said Richard in the sum of three hundred and nine dollars, forty-six cents, for certain goods and merchandise, before that time sold and delivered to the said Benjamin. And whereas, the Benjamin afterwards, to wit, on the same day and year aforesaid, made an assignment of his property, and appointed the said Charles his assignee : and whereas, afterwards, to wit, on the same day and year aforesaid, at the county aforesaid, & certain discourse was had, and moved, between the said Richard, and the said Charles, concerning the the said Richard, by the said Benjamin, and the assignment and proceedings of the said Charles, and the said Benjamin Lambert, the said Richard, declared, that he would not put up with such proceedings, that he would sue the said Benjamin Lambert, and that he would investigate the legality of the said assignment and proceedings of the said Charles and Benjamin. Whereupon, the said Charles requested the said Richard not to sue the said Benjamin, nor to investigate the legality of said assignment, and proceedings of said Charles and Benjamin, but to keep quiet, and he should not lose one cent, that he, the said Charles, would see him, the said Richard, paid the whole of his money. Whereupon, the said Richard, confiding in the promises and assumptions so as aforesaid made in this behalf, by the said Charles, refrained altogether from suing the said Benjamin Lambert, or investigating the legality of the said assignment, and proceedings of Charles and Benjamin: and the said Richard avers, that the said Benjamin has not paid any part of the said money, to the said Richard, nor hath the said Charles paid, or caused to be paid, any part thereof to the said Richard, though often requested.
    Second count. And whereas, a certain Benjamin Lambert, on the nineteenth day of April, in the year of our Lord, one thousand eight hundred and sixteen, was indebted to the said Richard, in the sum of three hundred and nine dollars, forty-six cents, for certain goods and merchandise, before that time sold and delivered to the said Benjamin. And whereas, the said Benjamin afterwards assigned his property to the said Charles: and whereas afterwards, to wit, on the same day and year aforesaid, at the county aforesaid, a certain discourse was had and moved, between the said Richard and Charles, of and concerning the money due the said Richard, by the said Benjamin, the said Richard declared to the said Charles, that he -would sue the said Benjamin Lambert. Whereupon, the said Charles requested the said Richard, not to sue the said Benjamin, bat to keep quiet, and he should not lose one cent, that he, the said Charles, would see the said Richard paid the whole of his money. Whereupon, the said Richard confiding in the promises and assumptions, as aforesaid, made in this behalf, by the said Charles, refrained altogether from suing the said Benjamin Lambert, and the said Richard avers, that the said Benjamin has not paid any part of said money, nor hath the said Charles paid, or caused to be paid, any part thereof to said Richard, though often requested so to do.
    Third count. And whereas, afterwards, a certain Benjamin Lambert, on the day and year aforesaid, at the county aforesaid, xvas indebted to the said Richard, in the sum of three hundred and nine dollars, forty-six cents; and whereas, afterwards, to wit, on the day and year aforesaid, at the county aforesaid, a certain discourse was had and moved between the said Richard and Charles, of, and concerning, the money due the said Richard, by said Benjamin, when the said Richard declared to the said Charles, that he would sue the said Benjamin; whereupon, the said Charles requested the said Richard, not to sue the said Benjamin, but to keep quiet, and he should not lose one cent, that he, the said Charles, would see the said Richard paid the whole of his money. Whereupon the said Richard, confiding in the promises and assumptions made in this behalf, by the said Charles, refrained altogether from suing the said Benjamin, and the said Richard avers, that the said Benjamin, has not paid any part of said money, nor hath the said Charles paid, or caused to be paid, any part thereof to the said Richard, though often requested so to do, &c.
    On the trial the plaintiff gave in evidence, that the debt from Lambert to him was for goods sold upon a credit which had not expired. That Lambert, soon after the sale, had failed; and that, meeting the defendant, the plaintiff told him he would sue, prosecute, and persecute Lambert, as it was a nefarious transaction, on which the defendant, (who was Lambert's brother-in-law,) told the plaintiff to keep his words to himself, he should, not lose a cent by the transaction, he would see him paid. The defendant thereupon contended, first, that the plaintiff had failed to prove his contract as laid in the declaration. Secondly, that there being no subsisting cause of action for which the plaintiff could sue Lambert at the time the promise was made, it was without consideration. The Court below charged the jury, that it was not necessary for the plaintiff to prove the contract in the words laid in the declaration : it was sufficient if it was substantially proved: and left it to the jury to say, whether the conversation between the plaintiff and defendant had reference to an immediate suit or to a suit at a time when the plaintiff would have a right to sue Lambert. If it referred to the latter, the forbearance to sue was a good consideration. To this opinion ^ defendant excepted.
    Edwards, for the defendant.
    Mahaney, contra.
   The opinion of the Court was delivered by

Gibson J.

If the defendant below received injustice, it was at the hands of the jury and not of the Court, whose direction as to the law was unquestionably right. It was not necessary to prove the contract in the very words of the declaration, but only substantially as laid. The variance is alleged to be as to the time when the debt from Lambert was payable. It is said, the plaintiff treated it in his declaration as if it had been due at the time of the promise, while the evidence shewed it was not payable till afterwards. But on recurring to the declaration, we find it stated as a present debt, without a word being said as to the time of its being payable. Then it is said, the declaration should have stated specially, that it was payable in futuro, for want of which, it must be intended, that a debt presently due was meant. I can sec no reason for that. The debt, which was to be the subject of forbearance, was, for every purpose of notice, specially enough set out; and we will not exact minuteness of detail for the mere purpose of increasing the difficulty of strict proof, and enhancing the danger of variance. Here was no variance; for as far as the declaration went it was met by the proof; and what is called variance, is nothing else than exuberance of the evidence as to details unnecessary to be stated. It is argued, however, that it was necessary to shew the debt was payable presently ; because an agreement to forbear to sue for a debt to become due thereafter, is not, it is said, a good consideration for a promise. But the-.reverse was held in Hamaker v. Eberley, 2 Binn. 506, which resembles the present case in every particular. Forbearance to sue, after a cause of action shall have arisen, must necessarily be prejudicial to the party forbearing, and it would therefore be strange if it were not a good consideration. But it is said the agreement of the plaintiff was to forbear fropi suing immediately; or that the defendant at all events made the promise under a belief, that Lambert was then liable, and that the defendant was led into that belief by the declaration of the plaintiff, that he would sue immediately. It is undoubtedly certain, that an agreement to forbear, during a period when a party has no cause of action, will not support a promise. But here again the error, if any, lay with the jury, who were instructed to consider, whether the conversation had reference to an immediate suit, or a suit which the plaintiff should afterwards have a right to institute; and as to the promise being made under a misapprehension of the facts, induced by the declarations of the plaintiff, it is enough that the cause was not put, by the defendant, to the jury in that point of view, nor the opinion of the Court asked with reference to it. In every view, the case is too clear for argument; and the judgment must be affirmed.

Judgment affirmed.  