Pool v. Horner

Bryan, J.,

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 *133 paid the note and all interest due on it, and performed all the other stipulations of his agreement. The house and lot cost $1465, and were sold at the desire and request of the plaintiff for the sum of $1100 by the testator, who received the purchase money and thereupon agreed to pay the plaintiff the sum of $235, and afterwards on various occasions promised to pay the same.

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 *134 moved by tbe previous suit, or request of tbe party, tbe promise was binding and capable of sustaining an action. And in another case the plaintiff brought bis action upon a promise made by tbe defendant to páy tbe plaintiff £20, in consideration that the plaintiff, at tbe instance of tbe defendant, bad taken to wife tbe cousin of the defendant it was held that tbe action was maintainable, although tbe marriage was executed and past before tbe undertaking and promise were made, because tbe marriage ensued at tbe request of the defendant. Dyer, 2Y2 b. So it seems, to be clear that tbe payment of the note for $150 by tbe plaintiff at tbe request of the testator and the performance of tbe other considerations by him are sufficient to support tbe promise made by tbe testator to pay the $235. Some of the testimony offered by tbe plaintiff did not conform with exactness to tbe-bill of particulars; but the greater portion of it tended to prove tbe facts therein stated. It was error in tbe Court to exclude tbe whole of it. Carroll’s Lessee vs. Granite Manufacturing Company, 11 Md., 399 .

(Decided 24th June, 1885.)

Judgment reversed, and new trial awarded.