Forester v. Scott - 38 Ohio App. 2d 15, 311 N.E.2d 27 (1973)

Rule:

One of the essential elements, which must be proved to establish a claimant's right to recover for breach of contract is that the contract was supported by a bargained for exchange of legally sufficient consideration. Even if a defending party asserts in the pleadings that there is a want of consideration, the burden of proof remains upon the complainant to show the consideration. 

Facts:

The appellant obligor Scott entered into a third-party beneficiary contract with the appellee beneficiary Forester, which provided for $ 15 per week child support until the beneficiary was 18 years old. The consideration for the agreement was the father's forbearance related to the appellant’s alleged alienation of affection of the father's wife, the loss of her services, and a purported assault and battery upon the wife. It was not alleged that the appellant was the father of the beneficiary. After making the agreement, the appellant filed for bankruptcy protection. The obligation to the appellee was scheduled and discharged. The sum of $ 140 was paid from the bankruptcy estate and that was the only payment ever received. The appellee beneficiary filed an action to collect the unpaid payments, and the trial court entered judgment for the appellee. Appellant then sought review of the trial court’s decision in an action to force a third-party contract for the payment of money to the beneficiary. Appellant asserted two arguments against the trial court's order. First, it was urged that the contract was unenforceable because there was insufficient evidence adduced to prove that it was supported by valuable consideration flowing from the appellees. Second, it was contended that the appellant was released from his obligation under the contract by his discharge in bankruptcy in 1963. 

Issue:

Was the appellant’s contention meritorious?

Answer:

Yes.

Conclusion:

The court reversed the judgment that was in favor of the appellee and held that after a careful examination of the record, the court were persuaded that the appellant’s first argument has merit and, thus this assignment of error was well taken. The court found that appellee had not established that existence of a valid underlying claim that could be surrendered as consideration for the purported contract. The court noted parenthetically, that if the appellant was the father of the child, then other recourse under Ohio Rev. Code Ann. § 3111 existed. And since this argument provided a sufficient ground for reversal, the court found it unnecessary to consider the merits of the second assignment of error regarding the effect of discharge in bankruptcy.