Bestor v. Roberts

STONE, J. Each of the counts in the present complaint contains a substantial cause of action. In the second count the telegram of plaintiff’s intestate is declared on as the foundation of the suit. It is averred in said second count, “ that the plaintiff claims of the defendant, said administrator, two hundred dollars, for the breach of an agreement in writing, entered into by Joseph D. Powers, in his life time, with plaintiff, in substance as follows,” giving what purports to be a copy of the telegram. There was no sworn plea denying the execution of this instrument. Under this state of the pleading, the telegram, without further proof, was “evidence . . that the party undertook to perform the duty for which it was given, and that it was made on sufficient consideration.” — Code of 1876, §§ 3035, 2989. Hence, it was not necessary, under the pleadings, to prove the execution by intestate of the alleged telegram ; and it follows that the proof, by comparison of hand writing, was immaterial — related to no issue in the cause, and could not possibly have done any injury. On the subject of comparison of hand-writing, see Kirksey v. Kirksey, 41 Ala. 626; Little v. Beasly, 2 Ala. 703; Bishop v. The State, 30 Ala. 41; Durkee v. Verm. Cen. R. R. Co. 29 Term. 127. If the present case be no more than a promise by intestate to indemnify plaintiff against a liability previously incurred for a third person, without prior request, it presents the naked case of past consideration, is nudum pactum, and can not be the basis of a recovery. — Jackson v. Jackson, 7 Ala. 791; Rutledge v. Townsend, 38 Ala. 706; 22 N. H. 544, (Allen v. Woodward); Buckley v. Landon, 2 Com. 404; Tharm v. [334] Dear, 4 Johns. 84; Ellison v. Jackson Water Co. 12 Cal. 542; Freer v. Hardenbergh, 5 Johns. 272 : Mills v. Wyman, 3 Pick. 207; Cook v. Bradley, 7 Com. 57. In 3 Salk. 96, it is said, “A promise grounded on a consideration executory, or which continues, is good, though the consideration was without request; as, for instance, ‘Eor that you married my daughter, I promise to give you ¿£100 ; good.” In Marsh v. Kavenford, Cro. Eliz. 59, the action was as-sumpsit, and the counts were, “that whereas, at the request of the defendant, there was a communication of a marriage between the plaintiff and the daughter of the defendant; that he married her, and that afterwards the defendant promised to pay him one hundred pounds. Egerton and Poster argued that this was no consideration ; for.it is past, and had no reference to any act before ; but if the marriage had been at the request of the defendant, and after the marriage he promised, &c., this had been good.. — Popham, Daniel and Coke, contra. . '. and it was here adjudged for the plaintiff.” In Loomis v. Newhall, 15 Pick. 159, it was ruled that “an entire promise, founded partly on a past and executed consideration, and partly on an executory consideration, is supported by the executory consideration.” So in Barker v. Halifax, Cro. Eliz. 741, the court said, “ that an assumpsit in consideration that you had married my daughter, to give unto you ¿£40 was good; for the affection and consideration always continues.” In Sto. Contr. § 477, this doctrine, in substance, is quoted without dissent. In the present record, the service shown to have been rendered by Roberts to the son of defendant’s intestate, was continuous in its character. He, as bail of young Powers, could, at any time, have arrested his principal, and surrendered him to prison in discharge of his bond. The object and spirit of the elder Powers’ telegraphic request were, not only that his son should be taken out of prison, but kept out. Roberts complied with all that was of substance in his request ; conferred on father and son benefit equal to all he could have done, if he had, technically, signed his bail bond after he received the telegram. We think Mr. Powers’ promise, if proved to have been made as alleged, creates a legal obligation of indemnity, and will support an action. There is nothing in the other question raised. There is no error in the record, and the judgment of the Circuit Court is affirmed.