COMMONWEALTH vs. JOHN S. D'ALESSIO.

SHERATON SERVICE CORPORATION vs. PETER J. KANAVOS and others.

4 Mass. App. Ct. 851

November 18, 1976

The individual defendants challenge the granting of summary judgment in favor of the plaintiff, Sheraton Service Corporation (Sheraton). Aside from their contention that Sheraton's supporting affidavit fails to comply with Mass.R.Civ.P. 56, 365 Mass. 824 (1974), which we find groundless, the only issue which the defendants raise to avoid summary judgment is lack of consideration for their guaranty of the debt of Dedham Inn, Incorporated (Dedham). That argument also fails. The individual defendants, two officers of Dedham and their wives, guaranteed Dedham's obligations at a time when Sheraton had refused to make further deliveries and could have brought suit for money owed to it by Dedham for past shipments. As a result of the guaranty, Sheraton resumed deliveries and refrained from taking

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legal action for over six months until it became obvious that no payments by either Dedham or the guarantors would be forthcoming. It is settled that a party suffers legal detriment sufficient to constitute consideration when he does something which he was privileged not to do or gives up something which he was privileged to retain. Williston, Contracts Section 102A, at 382 (3d ed. 1957). Graphic Arts Finishers, Inc. v. Boston Redevelopment Authy. 357 Mass. 40 , 42-43 (1970). If a party to a contract is no longer bound to fulfill it because of the default of the other party, either a promise made by the injured party to resume performance under the contract or the actual completion of it by that party is sufficient consideration to support a promise to pay made by a third party. Williston, Contracts Section 131B, at 555 (3d ed. 1957). See Ogden v. United Bank & Trust Co. 206 Cal. 571, 574 (1929); Ross v. Realty Abstract Co. 50 N.J. Super. 147, 154 (App. Div. 1958).

Judgment affirmed.