Brewer v. Ewart

97 So. 910, 210 Ala. 292, 1923 Ala. LEXIS 258

• Court: Supreme Court of Alabama
• Decided: November 8, 1923
• Docket: 6 Div. 784.
• Status: Published

Opinion

SOMERVILLE, J.

The bill of complaint could not be maintained on the theory merely of enforcing a parol trust in land, nor of enforcing a contract for an interest in land by specific performance. As last amended, it undertakes to show a contract of joint adventure for the purchase and sale of land, under which the respondent was to buy in the land, or furnish the money therefor, hold it for the joint benefit of complainant and respondent, and when sold divide the net profits between them.

A contract of joint adventure, like any other contract, must be supported by a Valuable consideration. There must be some contribution, by each coadventurer, of money, or material, or service; for otherwise the promise of his associates to give him an interest in the enterprise, and a share in its profits would be nudum pactum merely, and therefore without effect.

It is true that mutual promises are sufficient to support a joint adventure, but the promises must be to do something promotive of the enterprise, and not merely to share in its profits. An examination of the bill of complaint, as finally amended, discloses that it is wholly bare of any allegation that complainant was to contribute anything whatever — money, material, or service — to the initiation, prosecution, or conclusion of the adventure. So, also, an examination of the testimony fails to show that complainant contributed anything, or undertook to do anything, in that behalf.

The net result of it all was that respondent gratuitously agreed to buy, hold, use, and sell the land for the joint benefit of himself and complainant. Such a promise is not binding, and cannot be enforced either in law or equity. The demurrer for want of equity, as well as the demurrer pointing out the absence of valuable consideration, should have been sustained.

The decree will be reversed, a decree will be here rendered, sustaining the demurrers as indicated, and the cause will be remanded for further proceedings.

Reversed, rendered, and remanded.

ANDERSON, O. J., and THOMAS and BOULDIN, JJ., concur.