McKeen v. Harwood , 15 Ala. 792 ( 1849 )

CHILTON, J.

It is perfectly' clear, in this case, that- had Harwood sued either Bloodgood, or Sniith, for a refusal, bn their part, to comply with the promise which-they had respectively made, to him, to give him the -refusal of renting the stores owned- by them, at the prices stipulated, he could not have recovered ; for the promise was not only without any consideration, but wanted another essential element of a valid agreement — mutuality. And this is the gist of the decision, 'up'on which the plaintiff in error mainly relies, in the case of Burnett v. Bisco, 4 Johns Rep. 234. In that-case, there was a written promise to give the plaintiff the refusal of. a farm for -the term, of two years, for a stipulated amount,' which was to be guarantéed by good security. The plaintiff averred'that 'he had complied, on his part, and had tendered the1 security, and that the defendant had refused to comply, &c. Held, that the action was not maintainable, as there was no agreement-on the part of the plaintiff to take the farmland that as-nothing of value passed from him, and there was no promise on his part, to support the promise on the part-of the defendant, the contract was nudum pactum. But it is most obvious, that the case at bar, is wholly without the influence of the principle settled by that case. Here; the parties - who made the promise, to give the' defendant-in error the refusal of renting their stores, at the prices respectively stipulated, fully recognize their honorary obligations, in their willingness to comply with the promise they-had made him. So long then, as Smith and Bloodgood chose to recognise his right to elect to rent either of the stores, McKeen and Brother, • could make no lease; • Thus the promise to Harwood -operated to -the prejudice of McKeen & Bro., to the extent of the injury which resulted from their present inability to lease. At the same time, the exclusive privilege for the time, being voluntarily awarded to Harwood, by Smith and Bloodgood, was a benefit to him ; for it enabled him to takefft his election the better bargain — not an election, the rightfb which, the law would have enforced, but which- the proprietors of the stores were willing to accord him.

Thus viewing the condition of the parties, let us see what change the contract declared on, wrought upon their situation. After McKeen & Bro. made the agreement to take the house of Smith at $1200, and' to pay Harwood $150, who was to take the store of Bloodgood at $1500, it is very clear that Harwood could not legally have rented Smith’s store, to the exclusion of the plaintiffs in error; for by the terms of the contract, in consideration of the mutual -promise of McKeen & Bro. to pay him $150, he was bound not to do it. But Harwood was not only denied the election to take the house of Smith, but the plaintiffs in error were thereby enabled to conclude the contract for the house, which before that time, by reason of the promise to Harwood, they had been unable to make. There was then, in legal contemplation, not only a detriment to the promisee, but a'benefit to the promisor.

It is no answer to say, that Smith was- not bound to let McKeen & Bro. have the premises, at the rate at which Harwood was to have them, but could have refused altogether. The parties at the time of the contract knew of his right to reject both of them, and must be presumed to have contracted with reference to it. But Smith did not refuse to conclude the lease, and this furnishes the best evidence to show that McKeen & Bro. knew he would not. At all events, it does not lie with the plaintiffs in error to say, in the absence of all fraud, imposition or injury, we ought to be relieved from a compliance with our contract, since we might have been thwarted in our expectations, but we were not.

We feel satisfied, that according to the well settled rules of law, the consideration was sufficient to support the premise, and that the court below properly refused to instruct the jury to the contrary. The law is not particular in ascertaining how much of benefit to the one, or detriment to the other, of the parties, resulted from the contract, as the mere inadequacy of consideration will nqt ; render it invalid. It has been held, that a promise to pay, if á party would swear to the truth of his demand, is binding, as supported by a consideration, if the party make the affidavit accordingly. 18 Johns. Rep. 337. Any damage, suspension, or forbearance of a right ; any benefit to the party promising, or prejudice, detriment, or trouble to the party to whom the promise is made, has been generally esteemed a sufficient consideration. See cases in the brief of defendants counsel—also, Jones v. Ashburnham, 4 East, 455; Lent v. Padelford, 10 Mass. 236; Seaman v. Seaman, 12 Wend. 381; Gillespie v. Battle, at the present term.

It is said, however, that the contract is void, as being against public policy. We are unable to see what principle of public policy is violated by it, and the counsel has not pressed the argument upon this point. It is not usual to speculate upon the courtesies gratuitously extended by friends, but there may be cases where the strictest morality will not forbid it. At most, this is a question between Smith and Harwood, and in which the plaintiff's in error have no concern. They have received all they contracted for, and should be held to a compliance with the contract.

Let the judgment be affirmed.