Contracts I, Page 34–38

Baehr v. Penn-O-Tex Oil Corp.

Supreme Court of Minnesota, 1960


Plaintiff rented filling stations to a man name Kemp and his business. Kemp was heavily indebted to defendant. When Kemp could not pay defendant, he gave the defendant a list of his accounts, which the defendant then collected money from. Defendant also sent an agent to run Plaintiff's business. As a result of defendant taking Kemp's money, Kemp ceased paying rent to plaintiff. Plaintiff repeatedly requested the rent from defendant, who replied that he would get his rent but that they were not operating or possessing Kemp's business. Plaintiff was out-of-state at the time and filed suit once returning to Minnesota.

Procedural History:

District court found that defendant did not take possession of the filling station or assignment of Kemp's leases but submitted whether he had a contract or not to the jury. The jury found a judgment for the plaintiff, but the judge overruled this and granted the defendant's motion.


Does not suing someone immediately constitute forbearance for the purposes of consideration?

Plaintiff's Argument:

Plaintiff's failure to immediately file suit when Kemp did not pay is a forbearance which constituted consideration for defendant's payment.


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...circumstantial evidence may support the inference of such an agreement to forbear. However, such an inference must rest upon something more than the mere failure to institute immediate suit.


  • Plaintiff was initially unable to file a suit as he was out-of-state, and he filed suit "as rapidly as the lawyer could get moving" once he returned. Therefore, there's nothing to suggest he delayed the lawsuit.

  • No evidence was presented showing that plaintiff sought defendant's forbearance or that defendant's promises were taken seriously as recompense for that forbearance.


Not alone. There is no evidence that such a delay was part of an agreed upon contract however. Affirmed.