Brown v. Addington
| Decision Date | 28 January 1944 |
| Docket Number | 17145. |
| Citation | 52 N.E.2d 640,114 Ind.App. 404 |
| Parties | BROWN v. ADDINGTON. |
| Court | Indiana Appellate Court |
Moran & Abromson, of Portland, and Robert F. Murray and L. A Guthrie, both of Muncie, for appellant.
Bonham & Emshwiller, of Hartford City, and Brady & Watson of Muncie, for appellee.
The appellant instituted this suit against the appellee in the Delaware Circuit Court to recover judgment on the following written instrument:
The complaint was originally in three paragraphs to each of which a separate demurrer for want of sufficient facts was filed by the appellee and sustained by the court. The appellant thereupon dismissed the second paragraph of said complaint refused to plead further as to the first and third paragraphs thereof, and judgment was rendered accordingly. The only questions presented to this court for decision go to the sufficiency of the facts pleaded, either in the first or third paragraphs of said complaint, to constitute a cause of action.
Appellant's first paragraph of complaint alleges the execution of the above contract by the appellee, the death of William E. Brown, the appointment of the appellant as the administrator of said decedent's estate, the failure of the appellee to pay any part of his obligation by reason of said contract, and asks judgment in the sum of $1,100. The appellee contends that his demurrer to this paragraph of complaint was properly sustained because it shows on its face that the contract sued upon was executed wholly without consideration. This contention is based on the fact that there is no allegation in the body of the complaint that said contract was executed for a good or valuable consideration and the contract itself, which is the very foundation of the appellant's cause of action and which is attached to the complaint and made a part thereof by reference, shows that it is a mere promise to pay money in recognition of past favors and kindnesses prompted by the natural love and affection the appellee held for the appellant's decedent during life.
A contract to pay money purports a valid consideration and ordinarily a mere recital as to the consideration for such a contract is not binding, and parol evidence is admissible to show that some other consideration was in fact given or to be given. McDill v. Gunn, 1873, 43 Ind. 315; Stearns v. Dubois, 1876, 55 Ind. 257; Welz v. Rhodius, 1882, 87 Ind. 1, 44 Am.Rep. 747; Pickett v. Green, 1889, 120 Ind. 584, 22 N.E. 737; Stewart v. Chicago, etc., R. Co. and Chicago and Indiana Coal Ry. Co., 1894, 141 Ind. 55, 40 N.E. 67; Ewbank's Indiana Trial Evidence, p. 496, § 541. It has been held, however, that this rule has no application where the instrument states the consideration fully and specifically. Bever v. North, 1886, 107 Ind. 544, 8 N.E. 576; Diven v. Johnson, 1888, 117 Ind. 512, 20 N.E. 428, 3 L.R.A. 308; Reynolds v. Louisville, New Albany & Chicago Ry. Co., 1895, 143 Ind. 579, 40 N.E. 410. The recital in the present contract appears to us to be a full and specific statement of the alleged consideration for which said contract was executed and, as the complaint avers no other or additional consideration, it is not fortified by the parol evidence rule to which we have above referred. If a person has been benefited in the past by some act or forbearance for which he incurred no legal liability and "afterwards, whether from good feeling or interested motives, he makes a promise to the person by whose act or forbearance he has benefited, and that promise is made on no other consideration than the past benefit, it is gratuitous and cannot be enforced; it is based on motive and not on consideration." 17 C.J.S., Contracts, p. 470, § 116, and cases cited. Although natural love and affection is sufficient consideration for an executed contract, it is generally held insufficient to support an executory promise. Indiana is in line with this general rule and the courts of this state have held frequently that such promises are mere gratuitous engagements to give and not gifts inter vivos or causa mortis. Galbraith v. Galbraith, 1935, 99 Ind.App. 563, 193 N.E. 707; West v. Cavins, Executor, 1881, 74 Ind. 265; Gammon Theological Seminary v. Robbins, 1890, 128 Ind. 85, 27 N.E. 341, 12 L.R.A. 506; Roney v. Dunleary, 1906, 39 Ind.App. 108, 79 N.E. 398; Bowers v. Alexandria Bank, Adm'r, 1921, 75 Ind.App. 345, 130 N.E. 808.
We are constrained to hold that the appellant's first paragraph of complaint counts on a written instrument which was executed through motive only and, being executory in nature, the natural love and affection existing between the parties thereto will not support it as a gift inter vivos. The demurrer thereto was properly sustained.
The appellant's third paragraph of complaint is identical with the first except that it contains the following additional allegations: When 8 years old the appellee, a nephew of the appellant's decedent, became homeless. Although under no legal obligation to do so the said decedent took the appellee into his own home where, during the ensuing 6 years, said appellee was fed, clothed, educated in the public schools and otherwise cared for by said decedent for all of which said decedent received no remuneration. For many years thereafter the appellee, when not employed, spent much of his time in the decedent's home and paid nothing for food and...
To continue reading
Request your trial