(dissenting). The decision of the majority totally diregards the contract between the-parties as evidenced by the two letters set forth in the opinion. They say that the correspondence refers to the lien, but not to the payment of the debt, and refers to a lien filed in apt time, not to one which, for any reason, is invalid. In this view of the matter, the contract had no binding force whatever, for if the lien was valid it needed no new promise to make it effective,, and if the promise did not amount to an obligation to pay the debt for which the lien was asserted, it did hot rise to the dignity of a contract at all.
There was a conflict in the testimony as to the payments on the account of appellant, as well as to the time of completion of • appellee’s house by Foster, the contractor, but it may be conceded that the findings of the chancellor on these disputed questions of fact were not against the preponderance of the evidence. There is, however, no dispute as to the correspondence between appellant and appellee, nor as to the circumstances under which it arose. Appellant had, after giving notice to appellee, filed a lien in accordance with the statute (Kirby’s Digest, section 4981) which provides that persons asserting such liens must file “with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within ninety days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to Mm, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit. ’ ’
It is well settled by numerous decisions of this court that forbearance to institute legal proceedings for a time on an asserted claim, or to refrain therefrom altogether, is sufficient consideration to support a new obligation, and that the agreement for compromise of a disputed claim, even one which is in fact withotit merit, also constitutes a sufficient consideration for a new promise. Those principles are distinctly recognized in the opinion of the majority, and authorities are cited in support of them. Other cases not mentioned in the opinion may be cited: Buckner v. McIlroy, 31 Ark. 631; Willingham v. Jordan, 75 Ark. 266; Fender v. Helterbrandt, 101 Ark. 335; Nothwang v. Harrison, 126 Ark. 552; Jonesboro Hardware Co. v. Western Tie & Timber Co., 134 Ark. 543; Simonson v. Patterson, 139 Ark. 106; First National Bank v. Allen, 141 Ark. 328.
But the majority hold that these authorities have no application, for the reason that, under proper interpretation of the correspondence, appellee did not promise to pay the debt, or to discharge any lien except a valid one filed in apt time. This is a narrow view to take of the language of the letters. The lien had been filed stating the amount of the debt claimed, and notice thereof to appellee had been given. The letter referred to the filing of the lien “for unpaid lumber bill,” and promised in consideration of forbearance, to “pay same.” Pay what? The debt for which the lien was asserted. There was nothing else to pay, and that is what the letter meant if any meaning at all is to be attributed to it. And, even if the lien was filed too late, the promise to discharge it in consideration of forbearance for a time to sue constituted a waiver of the failure to file within the time prescribed by statute, or, at least, an agreement not to plead it.
Mr. Justice Smith shares these views.