64 Md. 131 | Md. | 1885
delivered the opinion of the Court.
The statement filed as a bill of particulars alleges that there was an agreement between the plaintiff below and the testator of defendants, that for certain valuable considerations the said testator would buy a house and lot for plaintiff, and permit him to occupy it, and if plaintiff could obtain a larger price than the said testator paid for it, that he would pay to the plaintiff what might be obtained for it, over and above the price originally paid for it. The consideration on the part of. the plaintiff was that he gave a note for $150 because of an old debt for $125 which he owed the testator, and that he agreed to pay him annually the interest on the purchase money of the house and lot, and all taxes, insurance, and ground-rent thereon, and agreed to keep the house in good repair. The plaintiff
The contract thus alleged was for the purchase of an interest in land, for the sale of it under certain circumstances, and for the payment to the plaintiff of a portion of the price received by the owner. Being by parol, it comes fully within the fourth section of the Statute of Frauds, as much so as that set up in White, Adm'x vs. Coombs, Ex’r, 27 Md., 489. The plaintiff could not have maintained an action on this contract while it was executory, but the testator’s express promise to pay after it was executed introduced a new feature into the transaction. It is stated in the notes to Osbourne vs. Rogers, 1 Wms. Saunders, 264 b, as a settled rule “that a past consideration is not sufficient to support a subsequent promise, unless there was a request of the party, express or implied, at the time of performing the consideration; but where there was an express request at the time, it would in all cases be sufficient to support a subsequent promise.” This doctrine seems to have been held uniformly ever since the case of Lampleigh vs. Brathwaite, decided in the reign of James I and reported in 1 Smith’s Leading Cases. The case is thus stated: the defendant having feloniously slain one Patrick Miahume required the plaintiff to endeavor to obtain a pardon for him from the king, and the plaintiff journeyed and labored, at his own charges and by every means in his power, to effect the desired object, and the defendant afterwards and in consideration of the premises, promised to give the plaintiff £100; it was held that although the consideration was passed and gone before the promise was made, yet inasmuch as the consideration was
Judgment reversed, and new trial awarded.