72 W. Va. 263 | W. Va. | 1913
The plaintiff sues in assumpsit to recover of defendant five thousand dollars damages for breach of contract. Succinctly stated, the contract averred is that plaintiff, a married woman, her husband joining, conveyed to defendant a lot in Wheeling, for $660 actually paid, with the further oral agreement that in the event defendant purchased any other of the lots described in the declaration as contiguous to or near' the lot conveyed by her it would pay her as further compensation the difference between $660' and the sum, whatever it might be, at which defendant should purchase any one of the other lots, the difference to
In defendant’s brief, the invalidity of the contract averred is urged, for the reason that it is void for uncertainty, want of consideration, and as against public policy. It is also asserted that the declaration is defective because of its failure to allege a basis for the determination of the amount claimed thereby, and to aver a promise by defendant to. pay plaintiff the sum recovery of which is sought.
The uncertainty urged is that the prices of the .lots within the strip not yet purchased by defendant are not ascertained, because if purchased they may exceed those paid Hazlett and Driehorst. The contract stated in the declaration applies not to all, but to any, of the lots that should be purchased by defendant. Having elected to sue, as with propriety she might, for the difference between the price paid her and that paid either Hazlett or Driehorst, she thereby precluded herself from again suing to recover any sum in excess of that now claimed. She is bound by her election. Nor is this a matter or cause of which the defendant can reasonably complain. It enured to its benefit. An agreement, though not in writing, made by a grantee at the time of sal,e and conveyance of land, to pay therefor a sum in addition to that expressed in the deed, is valid, binding and enforceable. Nickerson v. Saunders, 36 Me. 413, cited with ajiproval in Pierce v. Weymouth, 45 Me. 481. If a contract designates a method whereby the price can be definitely ascertained, even from a contingency, it is not thereby rendered uncertain. Where a contract for the sale of a village lot provided
Nor do the authorities relied upon by defendant show the contract void as against public policy. The defendant insists that in effect the contract ■ is fraudulent because the manifest purpose thereof was its use as an inducement to other lot owners .to sell and convey their lots for the price named in plaintiffs •deed. How plaintiff could reap any benefit or profit from the -inducement on others, if successful, is not obviously apparent. If her neighbors received the same price, or prices at the same rate per front foot, in what respect is her interest advanced? The authorities cited by defendant hold that contracts actually fraudulent are void and unenforceable. By what process of reasoning is that conclusion applicable to this case? It is not admitted' on demurrer, nor does it arise upon the mere agreement of parties for an increased price.
The declaration is not defective in either respect asserted by •defendant. It does definitely aver a method by which the exact sum demanded thereby is ascertainable, in fact ascertained— the difference between - the sum paid plaintiff and the prices paid by defendant for lots purchased by it within the strip. The
The declaration also substantially avers a promise by defendant to pay plaintiff the additional compensation for her lot. There is, it is true, no express averment of a promise in the technical sense. But, after stating in detail by clear ana unambiguous terms the contract for further compensation, defendant’s purchase of the Hazlett and Driehorst lots, and subsequently of other lots within the “strip,” the declaration avers that thereby “it was provided that the said defendant should pay to the said plaintiff the sum of $660 as part of the consideration for the property so to be conveyed as aforesaid, and .also that the defendant should pay to the plaintiff any further amount which might be necessary to make the price per front foot the same as the defendant should thereafter pay to the ■owners of any of the other portions” within the “strip”; and, further, “that under and by virtue of the said contract the said defendant became liable to pay” the difference; concluding with an averment of the usual request by plaintiff therefor and refusal by defendant. The contract is stated throughout not by wajr of recital, as in Mold & Foundry Co. v. Steel & Iron Co., 62 W. Va. 288, but as a positive agreement for further compensation for plaintiff’s property. This substantially avers a promise, sufficient to comply with the requirements of good pleading. To hold otherwise would sacrifice substance to dry, technical forms. In Wolfe v. Spence, 39 W. Va. 491, cited, an action to recover the value of certain machinery, the infirmity in the declaration was its failure to aver in express terms an agreement that the machinery would perform the work for which it was intended. In Waid v. Dixon, 55 W. Va. 191, the declaration stated no promise or agreement by Dixon to reimburse plaintiff for any of the work for the value of which he sought to recover in the action. Bannister v. Coal & Coke Co., 63 W. Va. 502, holds that a declaration in assumpsit which avers that defendant “agreed” to pay plaintiff a sum certain for things done by him under contract therefor sufficiently alleges a promise. And Stopper v. McGara, 66 W. Va. 403, holds that
For reasons stated herein, the judgment of the circuit court is vacated and annulled, the demurrer overruled, and the action remanded for issue and trial.
Reversed and Remanded.
