47 So. 712 | Ala. | 1908
— ‘The appeal in this case is taken from the decree of the chancellor holding the respondent’s plea insufficient as an answer to the bill and overruling the same. By the plea the defense of an esjoiipel in pais was sought to be set up against the bill. Under the authorities hereinafter cited, we are quite clear that no facts are stated in the plea out of which an estoppel could arise. The last will and testament of Major L. Ramser, deceased, had not been offered for probate at the time of the alleged promise by the complainant to the respondent. There was no pending suit between the parties in which any controversy existed. The plea does not aver as a fact that there was any reasonable ground
■ Construing the plea most strongly against the pleader, as the rule requires, it avers nothing more than the mere existence of a controversy. In Allen and Wife v. Prater, 35 Ala. 169, 174, it Avas said by this court: “The mere existence of a controversy, Avhich has not assumed the form of a pending suit, not, Avithout more, a sufficient consideration to support a verbal promise made in settlement of it. To sustain such a promise there must be some reasonable ground for the controversy. The promise of the defendant was therefore void, unless there was some reasonable ground for the existence of the controversy in the settlement of Avhich it was made’’ —citing Allen v. Prater, 30 Ala. 459, and Prater v. Miller, 25 Ala. 320, 60 Am. Dec. 521. So in the case at bar, there being no pending suit and no- averment in the plea of the existence of any reasonable ground of contest, the promise made in settlement of the controversy was void and Avould not support an action; and, unless a reasonable ground of contest in fact existed, the failure to contest, induced '¡by the hllegvjd promise of the complainant, occasioned no injury to the respondent. Unless injury resulted from the failure to contest, induced by the promise made in settlement of the controversy, there is no room for invoking the doctrine of estoppel. Where no valuable right is parted with, and no injury suffered.
The decree is affirmed.
