85 W. Va. 750 | W. Va. | 1920
On the 24th of February, 1914, Fernand Barriat and Henry Q. Barriat, brothers, each being the owner of eight shares of the stock of Banner Window Glass Company, executed a writing by which they mutually agreed to pay to their father and mother, or the survivor, all dividends thereafter declared upon said shares of stock. This paper was delivered to the father and by him turned over to the Banner Window Glass Company, and thereafter all the dividends were regularly paid to the father until his death, after which time they were paid to the mother until the controversy here involved arose in the month of May, 1918. Early in 1918 the Banner Window Glass Company sold its plant and properties, and it was ascertained that it had on hand assets, which had been derived from earnings during the time it had been in business, amounting to the sum of $65,000.00. It also received $65,000.00 in cash for its plant and properties. The $65,000.00 which was on hand and which had been earned by the company was declared in a dividend to the stockholders, and it was determined as soon as matters were adjusted to declare the remaining $65,000.00 which had been received for the sale of its properties in a like dividend. At this time the defendant Henry Barriat notified the Window Glass Company not to pay any dividends declared on his eight shares of stock in accordance with the writing above referred to, and demanded that such dividends be paid to him, his mother likewise demanding that the dividends be paid to her in accordance with the writing entered into. His brother, Fernand Barriat, also joined with his mother in this demand. This interpleader suit was then brought by the Glass Company for the purpose of determining to whom the dividends should be paid upon the eight shares of stock held by Henry Barriat, as well as the eight shares held by
It will be observed that there was no consideration passing from the father and mother, the beneficiaries of the paper writing, to either of the sons. It does not appear that either of the sons were under any obligation to support their father and mother, nor is any contention of that sort made in the case, the only contention of the appellants being that Henry Barriat was obliged to carry out his promise made in the writing because it was based on a similar promise made by his brother, while Henry Barriat contends that the promise made in the writing by him is nothing in the world but a declaration of purpose to give the dividends declared on this stock to his parents, and this declaration of purpose to make a gift could be revoked and recalled at any time before the subject of the gift was actually delivered to the donee. That a promise of. one may be a valid consideration for the promise of another is well settled. It is equally as well settled, however, that in order for such a promise to be a good consideration for the promise of the other party, it must be such as legally binds the promissor so that an action for the breach thereof might be maintained against him. 6 R. C. L., Title, “Contracts” § 84; Page on Contracts, §§ 515, 537, 565; Elliott on Contracts, § 231. It therefore ineluctably follows that-in order for the promise of Fernand Barriat to pay these dividends to his father and mother to constitute a valid consideration for the promise of Henry to do likewise, it must be such a promise as that an action could be maintained against him in case of his refusal. There is nothing in the case which shows
.The decree of the circuit court, therefore, holding that Henry Barriatt is entitled to receive the dividends in controversy is plainly right, and the same is affirmed.
Affirmed.