48 Ky. 369 | Ky. Ct. App. | 1849
delivered the opinion of the Court.
This action of assumpsit was brought against the ■executors of King, upon the alleged promise of their testator to pay to the plaintiff one thousand dollars at 'his, King’s death. The declaration states in substance, that the said King, in consideration that at his special instance and request, the defendant would sell his own farm on which he resided, and buy of King —— acres -of the farm on which King resided, and would remove ’himself and family to the last mentioned farm and reside '.upon it, undertook and promised to pay the plaintiff 1$1,000., at his, King’s death. And the plaintiff avers that confiding in said promise, he did sell, &c., and did buy, &e., and did remove with his family to, and reside ■upon the purchase, &c. The defendants demurred and pleaded the general issue. The demurrer was overruled, a verdict rendered for the plaintiff for $1,080, and a new trial refused to the defendants, who have •appealed to this Court for a reversal of the judgment •against them.
It is now contended that the declaration is substantially defective, and that the verdict is against the law and evidence in the case.
The first objection taken is, that the alleged promise being in parol, is within the interdict of the statute of frauds, and no action can be brought upon it. It has, however, been repeatedly decided in this and other Courts, that a promise, though not to be performed or completed until the death of a certain person, being contingent and uncertain as to the time of performance, does not come within the clause of the statute relating to promises not to be performed within a year: How
Nor do we suppose that the action is interdicted by that clause of the statute which relates to contracts for the sale of land or the lease thereof, for a longer time than one year. If Hanna had sold his land to King and this promise of $1,000 had been a part of the price, the promise, though in parol, would have been enforcible if the sale of the land had been evidenced by writing as required by the statute. And although if the sale of the land were by parol, the verbal promise to pay for it could not be enforced, this would be because the consideration of that promise would be itself unenforcible, and therefore, not sufficient to sustain the promise. And even in such a case, if a conveyance of the land be made and accepted,, the promise of the vendee, though remaining, in parol, is enforcible because he can no longer allege that it is without consideration.
But the present case is stronger against the application of the statute, because the $1,000 promised is no part of the price of land sold or agreed to be sold by the promisee to the promisor, nor even of the consideration or inducement for such a sale.. King did not buy nor agree to buy Hanna’s land, nor did Hanna sell or agree to sell it to King. But Hanna sold or agreed to. sell his land as he might, to any purchaser, and to purchase King’s land at a stipulated price, and to remove to'and reside upon it; and his doing or agreeing to do these acts, was the consideration of King’s promise, or King’s promise was the inducement to Hanna’s doing or agreeing to do these acts. In one of the counts the inducement is stated more simply, as the purchase or agreement to purchase King’s land, &c., and to remove to and reside upon it.
We may here notice that the statement of the consideration in the words that “in consideration that the plaintiff would buy, &c., King promised, &c.,” to which objection is made as not showing that there was at the time of King’s promise as alleged, any agreement or promise on the part of Hanna, and therefore, as failing to show a mutuality of agreement or obligation, is in
If upon the first count the promise of King could' be considered as a part of the price of Hanna’s land, which, would, we think,be a strained construction, it certainly cannot be s© considered upon the counts which do not mention the sale of Hanna’s land as a part of the consideration of the promise. And as- it was certainly no> part of the price of King’s land ©r ©f the consideration for his selling, it cannot, upon these last counts, be regarded as being an essential or integral part of the sale of land or of the contract therefor. King in fact, sells-his promise at the same time that he agrees to sell his land. The consideration for the sale of the land is so-many dollars per acre, then if any part of this price entered into the consideration of the promise, so far the consideration of the promise is money to be paid by, Hanna and not land; and if Hanna’s removal and residence constituted the whole or any part of the consideration of the promise, still it is the acts of Hanna and not the land that constitute the consideration. If the promise of King entered at all into the sale of his land, it should have enhanced the price, since he was at a future day, to pay back a- part of it. But if the removal and residence of Hanna entered into the sale, it should have diminished the money price, and would, therefore, seem to afford no ground for paying back a part of it.
Upon the evidence the money price seems to have been the fair value of the land, and there is no reason to suppose either that the price was increased on account of King’s promise to pay, or that it was diminished on account of Hanna’s agreement to remove and live upon the land. And although the relation of the parties and the motive of King’s desire that Hanna,
Upon the evidence, we are by no means satisfied that the jury ought to have found for the plaintiff. But there is evidence from which they were authorized to conclude that there was such a promise as alleged, founded in the consideration stated; and although circumstances tend to render it probable that if there ever was a contract to that effect, considered to be binding between the parties, it was waived or satisfied by sub
Wherefore, the judgment is affirmed.