Schnell v. Nell

17 Ind. 29 | Ind. | 1861

Pérkins, J

Action by J. B. Nell against Zacharias Schnell, upon the following instrument:

“This agreement, entered into this 13jih day of February, 1856, between Zach. Schnell, of Indianapolis, Marion county, State of Indiana, as party of the first part, and J. B. Nell, of the same place, Wendelin Lorenz, of Stilesville, Hendí ides county, State of Indiana, and Donata Lorenz, of Ftiekinger, Grand Duchy of Baden, Germany, as parties of the second part, witnessetb: The said Zacharias Schnell agrees as follows: whereas his wife, Theresa Schnell, now deceased, lias made -a last will and testament, in which, among other provisions, it was ordained that every one of the above named second parties, should receive the sum of $200; and whereas the said provisions of the will must remain a nullity, for the reason that no property, real or personal, was in the possession of the said Theresa Schnell, deceased, in her own name, at the time of her death, and all property held by Zacharias and Theresa Schnell jointly, therefore reverts to her husband; and whereas the said Theresa Schnell has also been a dutiful and loving wife to the said Zach. Schnell, and has materially aided him in the acquisition of all property, real and personal, now possessed by him; for, and in consideration of all this, and the lov§ and respect he bears to his wife; and, furthermore, in consideration of one cent, received by him of the second parties, he, the said Zach. Schnell, agrees to pay the above named sums of money to the parties of the second part, to wit: $200 to the said J. B. Nell; $200 to the said Wendelin Lorenz; and $200'to the said Donata Lorenz, in the following installments, viz., $200 in one year from the date of these presents; $200 in two years, and $200 in three years; to be divided between the parties in equal portions of $6G§ each year, or as they may agree, till each one has received his full sum of $200. • .

“And the said parties of the second part, for, and in consideration of this, agree to pay the above named sum of money [one cent], and to deliver up to said Schnell, and abstain from collecting any real or supposed claims upon him or his estate, arising from the said last will and testament of the said Theresa Schnell, deceased.

“In witness whereof,. the said parties have, on this 13th day of February, 1856, set hereunto their hands and seals.

“Zacharias Schnell, [seal.]

“J. B. Nell, • [seal.]

“Wen. Lorenz.” [seal.]

The complaint contained no averment of a consideration for the instrument, outside of those expressed in it; and did not aver that the one cent agreed to be paid, had been paid or tendered. '

A demurrer to the complaint was overruled.

The defendant answered, that the instrument sued on was given for no consideration whatever.

He further answered, that it was given for no consideration, because his said wife, Theresa, at the time she made the will mentioned, and at the time of her death, owned, neither separately, nor jointly with her husband, or any one else (except so far as the law gave her an interest in her husband’s property), any property, real or personal, &c.

'Hie will is copied into the record, but need not be into this opinion.

Hie Court sustained a demurrer to these answers, evidently on the ground that they were regarded as contradicting the instrument sued on, which particularly set out the considerations ^trpon which it was executed. But the instrument is latently ambiguous on this point. See Ind. Dig., p. 110.

The case turned below, and must turn here, upon the question whether the instrument sued on does express a consideration sufficient to give it legal obligation, as against Zaeharias Sohnell. It specifies three distinct considerations for his promise to pay $600:

1. A promise, on the part of the plaintiffs, to pay him one cent. "

2. The love and affection he bore his deceased wife, and the fact that she had done her part, as his wife, in the'acquisition of property.

3. The fact that she had expressed her desire, in the form of an inoperative will, that the persons named therein should have the sums of money specified.

The consideration of one cent will not support the promise of Sohnell. It is true, that as a general proposition, inadequacy of consideration will not vitiate an agreement. Baker v. Roberts, 14 Ind. 552. But this doctrine does not apply to a ihere exchange of sums of money, of coin, whose value is exactly fixed, but to the exchange of something of, in itself, indeterminate value, for money, or, perhaps, for some other thing- of indeterminate value. In this case, had the one cent mentioned, been some particular one cent, a family piece, or ancient, remarkable coin, possessing an indeterminate value, extrinsic from its simple money value, a different view might be taken. As it is, the mere promise to pay six hundred dollars for one cept, even had the portion of that cent due from the plaintiff been tendered, is an unconscionable contact, void, at first blush, upon its face, if it be regarded as an earnest one. Hardesty v. Smith, 3 Ind. 39. The consideration of one cent is, plainly, in this case, merely nominal, and intended to be so. As th¿ will and testament of SohneWs wife imposed no legal obligation upon him to discharge her bequests out of his property, and as she had none of her own, his promise to discharge them was not legally binding upon him, on that ground. A moral consideration, only, will not support a promise. Ind. Dig., p. 13. And for the same reason, a valid consideration for his promise can not be found in the fact of a compromise of a disputed claim; for where such claim is legally groundless, a promise upon a compromise of it, or of a suit upon it, is not legally binding. Spahr v. Hollingshead, 8 Blackf. 415. There was no mistake of law or fact in this case, as the agreement admits the will inoperative and void. The promise was simply one to make a gift. Tire past services of his wife, and the love and affection he had borne her, are objectionable as legal considerations for SohneWs promise, on two grounds: 1. They are past considerations. Ind. Dig., p. 13. 2. The fact that Sohnell loved Ms wife, and that she had been industrious,, constituted no consideration for his promise to pay J. B. Nell, and the Loremes, a sum of money. Whether, if his wife, in her lifetime, had made a. bargain with Sohnell, that, in consideration of his promising to pay, after her death, to the persons named, a sum of money, she would be industrious, and worthy of his affection, such a promise would have been valid and consistent with public policy, we need not decide. Nor is the fact that Sohnell now venerates the memory of his deceased wife, a legal consideration for a promise to pay any third person money.

Hie instrument sued on, interpreted in the light of the. facts alleged in the second paragraph of the answer, will not support an action. The demurrer to the answer should have been overruled. See Stevenson v. Druley, 4 Ind. 519.

James Morrison and C. A. Ray, tor the appellant. Af. JB. Taylor and A. Seidensticker, for the appellee.

' Per Curium. — The judgment is reversed, with costs. Cause remanded &c.