Forester v. Scott
67 Ohio Op. 2d 158, 311 N.E.2d 27, 38 Ohio App. 2d 15 (1973)
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Rule of Law:
A promise to forbear from prosecuting a legal claim constitutes valid consideration only if the party seeking to enforce the contract proves that the promisor had, at a minimum, an honest and reasonable belief in the validity of the underlying claim being surrendered.
Facts:
- Virginia Forester was married to Perry Forester.
- In 1961, while Virginia was pregnant with a child, Joyce Renee Forester, her husband Perry entered into a written agreement with Mark Scott.
- Under the agreement, Scott promised to pay $15 per week for the support of the child until her 18th birthday.
- In exchange for Scott's promise, Perry Forester agreed to forbear from suing Scott for the alienation of Virginia's affections, loss of her services, and assault and battery against her.
- The agreement stipulated that Scott would not attempt to see the child or mother and that the child would take the last name Forester.
- Nowhere in the contract did Scott admit to being the child's father.
- Scott failed to make the required weekly payments, paying only a total of $140.
Procedural Posture:
- Joyce Renee Forester, by her mother, filed an action against Mark E. Scott in the trial court to enforce the written agreement.
- The trial court found in favor of Forester and entered a judgment against Scott for $8,905 in past-due payments.
- Scott, as defendant-appellant, appealed the trial court's judgment to the intermediate court of appeals.
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Issue:
Does a promise to forbear from suing on a claim constitute valid consideration for a contract when the record contains no evidence establishing the validity of the underlying claim or the promisor's good faith belief in its validity?
Opinions:
Majority - Jackson, J.
No. A promise to forbear from suing on a claim does not constitute valid consideration where the plaintiff fails to provide evidence that the underlying claim was valid or that the promisor had an honest, reasonable belief in its validity. The burden of proving consideration rests on the party seeking to enforce the contract. Forbearance to sue on a claim is only valuable consideration if the underlying claim has some merit. The modern view requires, at a minimum, proof that the promisor had a subjective, honest belief in the claim's legitimacy and that the claim was not frivolous. In this case, Joyce Forester (plaintiff) provided no evidence that Perry Forester had an honest and reasonable belief that he had a cause of action against Scott. There is no evidence that Scott had sexual intercourse with Virginia Forester, and the legal presumption is that Perry, as the husband, was the child's father. Without sufficient proof of consideration, the contract is unenforceable.
Concurring - Krenzler, J.
No, but for different reasons. The promise to forbear from suing for alienation of affections, loss of services, and assault was valid consideration, making the contract itself valid and binding. However, the trial court erred because the debt created by this contract was discharged in Scott's bankruptcy proceeding. The obligation to pay under this agreement does not qualify as a non-dischargeable debt for child support under the Bankruptcy Act because it arises from a third-party contract, not from a direct parental obligation. Therefore, Scott was released from his obligation to pay when his debts were discharged in bankruptcy.
Analysis:
This decision emphasizes that forbearance to sue is not automatically valid consideration; the underlying claim must have a good-faith basis. It clarifies that the burden falls on the plaintiff to prove the existence of this good-faith belief, even under the lenient modern standard. The stark contrast between the majority's consideration-based reasoning and the concurrence's bankruptcy-based reasoning illustrates how the same outcome can be reached through entirely different legal pathways. This case serves as a crucial reminder for contract drafters to ensure that forborne claims are substantial and not merely recited without basis.
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