Allen v. Prater , 30 Ala. 458 ( 1857 )

RICE, C. J.

The forbearance by a party to a pending suit, to prosecute a right asserted therein, and the yielding up of the right thus asserted, is a sufficient consideration for a verbal promise by the adverse party to pay a certain sum of money. Where the controversy has not assumed the form of a pending suit, but there is reasonable ground for it, a verbal promise to pay a certain sum of money in settlement of it, is not without consideration, and may be enforced. — Stewart v. Bradford, 26 Ala. 410; Prater v. Miller, 25 Ala. 320; Edwards v. Baugh, 11 Mees. & Welsby, 641; Wilkinson v. Byers, 1 Ad. & Ellis, 106.

Both of the above propositions were, in effect, disregarded^ by that part of the charge of the court below which asserts, that the jury “must be satisfied that the testator was not capable of making a will, or that he was under undue influence.” If the charge in that respect is correct, it would be folly in the contestants of a will ever to make any compromise of a controversy as to its validity, unless they received cash in hand on the compromise. The charge denies all effect to such compromise, and requires the parties opposed to the will to prove precisely as much to support the compromise, as they could have been required to prove to overturn the will.

For the error in the charge above pointed out, the judgment must be reversed ; and, as the cause must be remanded for another trial, we deem it proper to decide, that the declarations of Mrs. Miller, which were admitted by the court, are not legal evidence against the plaintiffs in this cause. She does not appear to be so connected with the plaintiffs, or to sustain any such relation to them or their cause of action, as to give her naked declarations the effect of evidence against them. Her declaration as to the slave which she had in possession, that her father gave it to her, is not explanatory of the possession, but relates to the title, and to the person from whom she acquired it. — McBride v. Thompson, 8 Ala. 650; Abney v. Kingsland, 10 Ala. 855. Conceding that the defendants may be entitled to prove the facts asserted by the declarations of Mrs. Miller, yet they must prove them by competent evidence; and her mere declarations are not, as against the plaintiffs, evidence of the existence of those facts. Proving that she said the facts existed, is very different from proving their actual existence. Her declarations, as allowed on the trial, were the more naked declarations of a stranger, and wholly inadmissible.— Dickerson v. Hodges, 1 Porter, 99.

Judgment reversed, and cause remanded.