223 F. Supp. 837 | S.D. Miss. | 1962
Glen A. Turner has filed a Third Party Complaint against C.I.T. Corporation which has filed a motion to dismiss said complaint for failure to state a claim against it upon which relief may be
A promise of C.I.T. to Turner to get him to do that which he was already legally bound to do would be without consideration. No variation of circumstance involving the same principle would change the rule. There is no promissory estoppel in this case such as was involved in Lusk-Harbison-Jones v. Universal Credit Co., 164 Miss. 693, 145 So. 623. C.I.T.’s collateral agreement was executory and thus like Cragin v. J. S. Eaton & Bro., 133 Miss. 151, 97 So. 532, 34 A. L.R. 508 where the contractual obligation was modified and thus fully performed and seller sued for a recovery of his loss on the original contract and the court held the agreement as performed not to be without consideration. The controlling principle involved here is illustrated in Memphis Automatic Music Co. v Chadwick, 164 Miss. 635, 146 So. 137, where the holder of commercial paper agreed to make repairs to and even take a piano back if then unsatisfactory to induce the buyer to pay a past due note and the court held such obligation invalid as being without consideration.
Oral testimony was taken on behalf of Turner on this motion and the Court is of the opinion that all of the evidence before the Court on this motion undeniably shows that this collateral obligation of C.I.T. was without consideration and is unenforceable. Such matters outside the pleadings being presented to and not excluded by the Court under Rule 12(b) and the Court being of the opinion that there is no genuine issue as to any material fact between the parties on this third party complaint and that the third party defendant is entitled to a summary judgment under Rule 56(c), a judgment to that effect may be presented for entry.