121 Cal. 396 | Cal. | 1898
Plaintiff brought his action against defendant Agar as executor of the estate of Joseph McDonough, deceased, and for cause of action averred the following facts: For several years prior to the fourteenth day of September, 1894, he had been in the employ of Joseph McDonough in the capacity of salesman and collector. McDonough’s business was that of a wholesale and retail dealer in coal in the city and county of San Francisco. By reason of his experience, extended acquaintance, and personal influence, plaintiff had created and controlled a large amount of McDonough’s business. A short time prior to the fourteenth day of September, 1894, plaintiff was offered a fifth interest as partner in the business, goodwill, property and profits to accrue in a firm engaged in the business of dealing in coal in said city and county. Plaintiff was not re
The demurrer was both general and special. It was sustained,
Many propositions are urged in argument against this complaint—propositions presented under special demurrers for uncertainty and ambiguity. A point of some importance is made upon a variance between the contract set forth in the claim presented to the executor and the contract pleaded in the complaint. Upon none of these questions do we deem it important to touch, for the reason that the contract is not one for a breach of which a recovery may be had at law, nor one which may be enforced in equity, as is here sought to be done, and, therefore, the general demurrer was properly sustained.
There is no question but that a man may make a valid agreement binding himself to dispose of his property by last will and testament in a particular way, and a court of equity will under certain circumstances enforce such an agreement. That question has recently been considered at some length by this court, and it is not necessary to do more than refer to the case of Owens v. McNally, 113 Cal. 444.
Ho agreement may be enforced the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable. (Civ. Code, sec. 3390, subd. 6.) Before any such contract as this will be entertained by a court of equity, its terms must not only be fair, but free from doubt. Here it may not be determined what the liability of McDonough was, assuming, as of course we do, the truth of all issuable matters which are well pleaded.
If plaintiff had represented to McDonough that he intended to commence business for himself, and McDonough had answered: You remain with me and I will make good to you whatever you may lose by not leaving me, no one would doubt that McDonough’s offer was one which could not be measured or enforced. It could not be told whether the prospective business would or would not prove successful.
The actual case here presented is not essentially different. McDonough was to make good all loss which plaintiff might sustain by not entering the firm. How can that be measured, determined, or ascertained? Partnership dissensions might have arisen the next day, and a dissolution
The judgment is affirmed.
McFarland, J., and Temple, J., concurred.