Jones v. Powell , 15 Ala. 824 ( 1849 )

DARGAN, J.

We do not think that the declaration sets forth a valid, or binding contract between the parties. It commences by stating, that the defendant represented to the plaintiff, that by removing with his family to Texas, he would be entitled to three hundred and twenty acres of land; and that if plaintiff would remove to Texas with his family, by water, that the defendant would pay his expenses, provided he would convey to the defendant, one half of the land to which he would be entitled. It is not stated that the plaintiff accepted this proposition, nor that he did agree to remove with his family to Texas. But the declaration goes on to aver, that it was agreed, that the parties should meet at Wetumpka, preparatory to their removal. This is the only agreement stated in the declaration. Before the time appointed that the parties should meet, the defendant gave notice that he had abandoned the project, in consequence of which, the plaintiff did not repair with his family to Wetumpka.

In declaring on contracts, the declaration must show a binding agreement between the parties, which has been violated. If a valid contract is shown, and the consideration is concurrent, that is, if the promise of the one, is the consideration of the promise of the other, to do a certain thing at the same time, the plaintiff must aver a readiness, and willingness, on his part, to perform the promise. Chit. Plead. 296; Porter v. Rose, 12 Johns. 209; 8 Gill & Johns. 248.

Tested by these rules, the declaration is entirely defective. The inducement, or consideration, of the defendant’s promise, is, that the plaintiff would convey to him one half of the land to which he would be entitled by his removal to Texas. The declaration does not show, that the plaintiff agreed to convey to defendant, one half of three hundred and twenty acres of land, if entitled to it by his removal; nor does it aver a readiness, and willingness, to fulfil the agreement. If we could consider the declaration as describing a valid contract, as the promises are concurrent, an averment that the plaintiff was ready, and willing, to perform his promise, is indispensably necessary.

In no point of view, can the declaration be sustained, and the judgment is consequently affirmed.