Clement v. Clement

Seawell, J.

The promise, if it may be so construed, made by the plaintiff to the defendant to refrain from exacting interest on the notes, was admittedly made some time subsequent to their execution and delivery, * and so was not a part of that transaction. It was made, too, if at all, long prior to the suit for enforcement and was, therefore, not in the course of that proceeding. It is difficult, then, to consider the act as a waiver, such as might be effectual without the support of a consideration. 56 Am. Jur. 100 n. 5. “Waiver,” has been defined as “an intentional relinquishment of a known right.”

Johnson v. Zerbst, 304 U.S. 458 , 82 L. Ed. 1461 , 58 S. Ct. 1019 ;

Re Yelverton, 198 N.C. 746 , 153 S.E. 319 ;

Hardin v. Liverpool & L. & G. Ins. Co., 189 N.C. 423 , 127 S.E. 353 . A person sui juris may waive practically any right he has unless forbidden by law or public policy. The term, therefore, covers every conceivable right — those relating to procedure and remedy as well as those connected with the substantial subject of contracts. Sometimes they partake of the nature of estoppel and sometimes of contract. They occur *640 in tbe course of a judicial proceeding and sometimes, if we may use tbe term, 'are extra-judicial. No rule of universal application can be devised to determine wbetber a waiver does or does not need a consideration to support it. It is plain, tben, tbat in tbe nature and occasion of tbe particular waiver must lie tbe answer as to wbetber or not it requires sucb consideration.

In Porter v. Commissioner of Internal Revenue, 60 Fed. 2d 673, Judge Learned Hand observed, “Promissory estoppel is now recognized, as a species of consideration,” but however atypical in other respects, this; kind of estoppel is analogous to tbe principle on which tbe more classical or ordinary estoppel is based in tbat it is required to make it effectual' tbat the promisee in reliance upon tbe promise has been placed in a changed condition or position where detriment could only be avoided by enforcement of tbe promise. Restatement, Contracts, sec. 90. It must have induced definite and substantial action on tbe part of the promisee which can only thus be equitably avoided. Williston on Contracts,, sec. 140.

But it is safe to say tbat an extra-judicial waiver of a right to recover a stated sum of money o.n a promissory note does need a consideration to support it and is not to be compared with tbe waiver of a mere right, relating to procedure or remedy, or even substance in tbe course of a trial or occurring in tbe course of dealing with executory performances.

For a waiver of a legal right, which right is to be, or may be asserted in tbe future, where the waiver for want of essential elements of that principle, cannot operate as an estoppel, requires a consideration as much as an agreement by any other name. 56 Am. Jur. 116 , sec. 16;

Bank of U. S. v. Bank of Georgia, 10 "Wheat. (U.S.) 333, 6 L. Ed. 334 ;

Aron v. Rialto Realty Co., 100 N. J. Eq. 513, 136 A. 339 , 102 J. J. Eq. 331, 140 A. 918 . Generally speaking the requirement of consideration is the same as in any other contract.

Since the waiver in the instant case is only a unilateral concession on the part of the payee, it cannot be referred to the mutual considerations of the original contracts,- — i.e., the making of the notes.

On the whole the transaction benevolent in its nature, moved down a one-way street and took nothing of value from the beneficiary and added no detriment.

The burden of establishing his further defense,- — that is, alteration of the contract by valid waiver, was upon the defendant; and in the absence of any evidence of consideration he failed to carry it.

The instruction to the jury on this point, challenged by the plaintiff, is abstract, does not hug the subject too closely. Its main defect, however, is that it definitely leads the jury to understand that they might find from the evidence that there was a legally sufficient consideration for the *641 promise, whereas no evidence thereof existed. The Court cannot say that this did not enter into the consideration of the jury in their answer to the single issue presented to them and reduce the amount of the award.

The plaintiff is entitled to a new trial. It is so ordered.

New trial.

* The defendant’s counsel, in their brief, admit that the transaction relating to the waiver of interest took place subsequent to the execution of the notes; conceding that otherwise the admission of parol evidence over plaintiff’s objection was error.