Erwin v. Erwin

25 Ala. 236

• Court: Supreme Court of Alabama
• Decided: June 15, 1854
• Status: Published

Opinion

CHILTON, C. J. —

We should carefully distinguish between propositions, the acceptance of which amounts to a valid contract, and proposals to render a gratuitous kindness, which "are not designed to create legal obligations upon the parties. ' IFmay be, in many cases, difficult to discern the line which separates them ; it nevertheless exists. No general rules can be laid down as applicable to all cases, which may serve as a guide in arriving at the true construction of each proposal, and the intent and meaning of the parties in making it. Each case must depend upon its own peculiar circumstances. ’ We must "look to the relative situations of the parties to the transaction, the benefit to the party proposing, or the detriment to the other party, constituting the consideration, and the form, nature, and character of the proposal, as evincing an intention to make a contract, or to confer a mere gratuity. If the parties really designed to enter into a • contract, any benefit to the promisor, or detriment to the promisee, however slight, constitutes a valid consideration ; so, also, if the parties make mutual promises, the same being executory, and the promise of the one forms the consideration of the other. In all such cases, the contract is considered as based upon a valid consideration, and if otherwise capable of being enforced, it will be upheld. — Parsons on Con. 35*7; Com. Dig., Action on the jüase, Assumpsit (B 1.)

The cases of Kirksey v. Kirksey, 8 Ala. Rep. 131, and Forward et al. v. Armistead, 12 ib. 124, are cases which may serve to illustrate the distinction between .proposals, which, when accepted, amount to contracts, and those which are merely gratuitous. We should be inclined to hold, that the alleged c'ontract set up in the several counts in the declaration in this case, falls within the influence of these decisions, and should be regarded as a mere offer to render a kindness to the plaintiffs, which was not intended or regarded by any of the parties as a contract, creating a legal obligation, as i-t is fair to presume that, had the plaintiffs agreed to purchase the goods and the store-house and lot, as a consideration for the promise to endorse their paper and malee advancements on the part of the defendant, they would have insisted'.on having something definite in return — some terms which were capable of being ascertained and enforced as against the defendant.

But we prefer resting our opinion upon the fact, that, conceding this to be a contract, it is so indefinite and uncertain as to be wholly void. The defendant was to endorse the plaintiffs’ paper, and to make advancements. When, and for how much, was he to endorse, and how often ? How long-should the obligation to endorse rest upon him? How much money was he to advance, and when, and on what securities, were the advances to be made? The contract is silent as to all these matters. If it be answered, that he was to advance enough to enable them to carry on their mercantile business, this does not aid the matter ; for the question recurs, Upon what scale is it to be carried on ? The capital must bear some just proportion to the nature and size of the business to be carried on, and this is left wholly unsettled. It is clear, then, that no breach could be assigned upon it, which could bo compensated by any criterion of damages to. be furnished by the contract itself, and it is void for uncertainty. — See Moore v. Smith, 19 Ala. R. 774-783; 1 Chitty’s Pl. 261, 232, 236-7; Chitty on Con. 72; Figs v. Cutler, 3 Stark. R. 139; Sherman v. Kitsmiller, 17 S. & R. 45.

The demurrer to the several counts in the complaint was properly sustained. No provision in the Code dispenses with the statement of such a cause of action in the complaint as may be enforced. This contract is too uncertain to avail.

Let the judgment be affirmed.