26 Ala. 272 | Ala. | 1855
— The second count in the complaint avers, that, in consideration of the conveyance to the defendant of all title which Jane Candell had to a certain tract of land, and the abandonment of a contemplated suit in chancery by the plaintiff in relation to said land, the defendant promised and agreed to give the plaintiff, Elizabeth Adams, who is said defendant’s daughter, “ a full share of his property, which was then and there worth twenty-five thousand dol
The defendant did not demur to this count, but filed several special pleas in answer thereto. By one of these (plea No. 5), the defendant says, that the estate of the defendant, in the second count mentioned, consisted entirely of lands and real estate, and that the promise of the defendant, if any was made, as in the second count is alleged, was not in writing, signed by the defendant, or by any other person thereunto lawfully authorized by him. To this plea the plaintiffs demurred, but the court overruled the demurrer.
The defendant, by his sixth plea to the second count, averred that the promise, if any was made, was not to be performed within a year and a day from the time of making it. To this there was also a demurrer, which the court overruled.
"We think the second count of the declaration, or complaint, and both the above pleas, were bad — the count, because it sets forth an undertaking or contract, too uncertain as to the part to be performed by the defendant, to be executed by the court, or compensated for in damages. The defendant was to give to Mrs. Adams, his daughter, “a full share of his property, which then and there was worth twenty-five thousand dollars.” Was the share, or the whole property, worth twenty-five thousand dollars? How was the “full share” to be ascertained ? It is not averred that the defendant agreed to give her as much as he had severally given his other children ; or that she should be entitled to share in his entire estate in the proportion which one child bore to the whole number of children; setting out the amounts severally given to the other children, or the number of children and value of the entire estate, so as to furnish the data for ascertaining the damages. The count, furnishing no means of ascertaining the full share, is as indefinite as if the defendant had agreed to pay “ a sum of money”, without mentioning any amount. The Code does not dispense with stating a substantial cause of action, in such manner as that, prima facie, the court shall be competent to give judgment for its breach. If the plaintiff sets out a special contract, which is so uncertain as to be incapable of being enforced, it is void, and bis declaration or
We do not desire, however, to be understood as deciding that a good count may not be framed under the contract as brought to view in the bill of exceptions. If the father, for a valuable consideration, agreed to make his daughter equal in property to his other children, — agreed to give her as much as he had given to his other children severally, or agreed to give her so much as would make her share equal to a given portion of his estate, (one-fourth, fifth, or whatever it might be,) we see no reason why such contract cannot be enforced, if, in the contemplation of the parties, they looked to the execution of it presently upon the execution of that part of the contract to be performed by the plaintiff as the consideration of the defendant’s undertaking. Nor would it avail the defendant, that the contract was verbal merely ; for, although his estate may be partly (or even entirely) composed of land, yet he may make the plaintiff equal with his other children by paying her a sum of money equivalent to the value of the property or money severally given to his other children. It is clearly, therefore, not a contract for the sale of land within the meaning of the statute of frauds. The rule is, that where a contract admits of two interpretations, one of which would destroy, and the other uphold, it must be so construed as that it shall avail; for the parties intended that it should have some operation.
But it is supposed that the contract would be obnoxious to another section of the statute of frauds and perjuries — to-wit, that it was not to be performed within a year and a day. To this we reply, non constat: — no time is given for its performance ; and the law, in such cases, requires that it should be performed within a reasonable' time.
In Wells v. Horton, ex’r &c., 4 Bing. R. 40, (S. C. 13 Eng. C. L. Rep. 332,) A, being indebted to plaintiff, 'pr°m* ised him (the plaintiff) that in consideration of his forbearing to sue, A’s executor should pay him ten thousand pounds; it was held, that this was not a promise required by the statute of frauds to be in writing. Best, 0. J., said, the plain meaning of the statute is confined to contracts, which by agreement are not to be carried into execution- within a year, and does not
It is argued, that the count being bad, although the pleas were bad, we should not reverse, because the court below should have visited the demurrers upon'the count. Concede that the court, mero motu, should have done so ; yet it did not do it. If the demurrer had been sustained, and visited upon the count, the plaintiff could have amended, perhaps so as to have made his pleading good ; but he would be deprived of this privilege, if we refuse to reverse upon the ground that the count was demurrable. The plaintiff cannot thus be deprived of the benefit of a judgment respondeos ouster.—Marshall v. Betner, 17 Ala. 832.
Judgment reversed, and cause remanded.
