Numerous points of error are relied .on by defendant to reverse the judgment, below against him for $3,980.00. The first is that his demurrer to the declaration and to each count thereof should have been sustained. There are six counts. The fourth and fifth are nothing more than the common counts in assumpsit, and as to which no defects are specifically pointed out, and we perceive none. But the remaining counts it is urged are bad in point of pleading, (1) because of want of averment of a sufficient consideration for the alleged promises on the part of the decedent Samuel Francis; (2) that the several statements of the contract pleaded are too indefinite, uncertain and inadequate to be enforceable, even in a court of equity.
The contract of decedent substantially alleged in each of the four counts under review is that in consideration that the plaintiff with her husband W. H. Jefferson, farmers residing on their farm in Marshall County, would sell and dispose of their horses, cattle, hogs and farming implements, quit farming and move to the city of Moundsville and there reside with him at his home and provide him companionship for and during the remainder of his natural life, according to the first count, he would give plaintiff the sum of $4,000.00 to $6,000.00, payable out of his personal estate at the time of his death, and that he would provide therefor in his last will and testament. The second count with slight variation as to consideration, is the same as the first. The third predicated on the same consideration alleges the promise of decedent to pay plaintiff all expenses, costs and losses incurred by her and her husband in so disposing of their stock of
That one may maintain assumpsit on a contract to make a will when founded on a good and valid consideration, is not controverted. The authorities so hold. 40 Cyc. 1070; Hotsinpiller v. Hotsinpiller, 72 W. Va. 823, 825, and cases there cited.
*Was the contract here pleaded based on a good and sufficient consideration? We think it was. The contract as alleged involved sacrifice by plaintiff of her previous home on the farm, of .property thereon, changes of friends and' neighbors, and lies husband of profitable employment, and to that extend at least of means of support, and gave to the other party therein companionship during his natural life, however long that might be lengthened out in time. There can be no doubt of the sufficiency of the consideration, especially when viewed in the light of the relationship and situation of the parties disclosed by the evidence.
Contracts to make nulls are controlled by the same rules and principles and are enforceable as other contracts. Davidson v. Davidson, 72 W. Va. 747, 750, and eases cited. A gain to the promisor is as adequate a consideration to support a contract as the loss of the promisee. Jackson v. Hough, 38 W. Va. 236, 240; Rowan v. Hull, 55 W. Va. 335, 340.
The incurrence of some risk and trouble at the instance of the promisor singly or in connection with another at the
Is the contract alleged sufficiently definite and certain in its terms to be enforceable? There can be no doubt, we think, on this proposition. As the promise of the plaintiff is definite and certain, the only thing that can be regarded as uncertain is the amount of money promised by the decedent, $4,000.00 to $6,000.00. But the least sum promised was $4,000.00. This was the sum less the value of the property given by the will which plaintiff recovered. Agreements to give by bequest all the property of the testator have been held sufficiently definite. Burdine v. Burdine’s Ex’or., Howe v. Watson, and Schutt v. Missionary Soc., supra. The contract to pay $4,000.00 to $6,000.00 is certainly a promise to pay at least a sum of $4,000.00.
The other ground urged for reversal is that the contract alleged is not proven. In this we think counsel is in error. Plaintiff proved by her daughter, present at the time, previous conversations relating to the contract, and that the contract finally agreed upon between her mother and Samuel Francis was substantially in all respects as alleged, and that the contract was in all respects fully performed on the part of the plaintiff. Moreover, numerous witnesses swear positively that Francis declared to them after the time of the making of the contract the substance of the agreement as alleged and that he had made provision for his sister in his will as agreed. And one witness, a notary public, testified that he had prepared at least two wills for Francis in which provisions were made for Mrs. Jefferson, giving her practically if not quite all of his property, which then consisted mainly of personal estate. The evidence considered in the light of all the acts and conduct of the parties subsequently to the time of the making of the contract establish the fact of the contract beyond question of doubt.
Another contention in connection with the last proposition and as calling for reversal is that the court improperly excluded the testimony of witnesses for defendant of other declarations of the deceased testator as to contrary declarations made by him. The rulings of the court thereon, both to the exceptions' to the introduction thereof and for a new trial based on tbeir exclusion, were fully justified under the rule that all such declarations were made in the absence of the other party to the contract, were self serving, and properly excluded on both grounds. Crothers v. Crothers, 40 W. Va. 169; 4 Enc. Dig. Va. & W. Va. Rep. 344.
, The next point we will consider is the conflicting theories presented by the rulings of the court on instructions given .and refused, and the motion of defendant for a new trial overruled, as to the true measure of damages in cases of this character. The court in substance told the jury by the only instruction proposed by plaintiff that if they found the contract proved as alleged, they should- find for the plaintiff on .account of the promises of defendant’s testator not less than four thousand dollars, but to subtract therefrom the value of the bed and bedding left to plaintiff by the will of said testator. This instruction amounted to telling the jury that the true measure of damages in the case was the amount stipulated in the contract. There can be no doubt
Respecting the defendant’s instructions.. Number 12, given, we think, sufficiently and fairly presented to the jury the theory of the defendant applicable to the facts in the case. It put the burden of proof of the contract on plaintiff and told the jury that in such cases the contract alleged must be sustained by evidence, clear, positive and convincing. It also presented the theory of the defendant that the contract alleged had been fully performed by the decedent in his life time by the conveyance of a house and lot in the city of Moundsville to a daughter of the plaintiff. We have examined carefully all the defendant’s other instructions refused by the trial court, and on familiar principles find no reversible error in the rulings of the court thereon.
For the reasons given we are of opinion that the judgment should be affirmed.
Affirmed.