Brown v. Bowman

• Decision Date: 10 December 1903
• Parties: BROWN et al. v. BOWMAN.
• Court: Georgia Supreme Court

46 S.E. 410

119 Ga. 153

BROWN et al. v. BOWMAN.

Supreme Court of Georgia

December 10, 1903

Syllabus by the Court.

1. Though a promise may be a nudum pactum when made because the promisee is not bound, it becomes binding when he subsequently furnishes the consideration contemplated by doing what he was expected to do. Accordingly, where, by a written agreement, the owner of a designated tract of land gave to another the exclusive right to prospect for gold thereon, and agreed to give a half interest in all the gold he might locate and develop, "with all rights of mining and mineral privileges, wood, water, and right of way," and the latter, at considerable expense and much labor in sinking shafts, etc., located and developed gold on the land he was entitled to a half interest in the same, and, if the owner afterwards sold the land to an innocent purchaser, the party locating and developing the gold had a right of action against the owner for half the value thereof.

2. Where, in an action brought in such a case by the promisee against the owner of the land to recover one-half of the gold so located and developed, the petition failed to allege the value of such gold, it was not erroneous to sustain a demurrer upon a special ground thereof attacking the petition for this defect therein.

(a) In view of the fact that the demurrer was both general and special, and was expressly sustained upon all the grounds thereof, and the probability that, if the judge had intimated or announced his intention to sustain this special ground the plaintiffs would have prevented a dismissal of their petition by offering a proper amendment thereto, and the further fact that the petition presents a meritorious case the judgment is affirmed, with direction that the plaintiffs be allowed to amend the petition, in the respect above indicated, before the judgment of this court is made the judgment of the court below.

Error from Superior Court, Paulding County; A. L. Bartlett, Judge.

Action by B. W. Brown and others against L. N. Bowman. Judgment for defendant, and plaintiffs bring error. Affirmed.

H. F. Sharpe and Rowell, Copeland & Rowell, for plaintiffs in error.

W. E. Spinks, John W. Akin, and R. R. Arnold, for defendant in error.

FISH P.J.

1. Bowman's agreement, which appears in the foregoing statement of facts, was evidently without consideration when made, as Brown and Taylor at that time neither did nor agreed to do anything. It was therefore, when made, unenforceable for want of mutuality. When, however, Brown and Taylor within a reasonable time, and in the absence of any revocation of the agreement by Bowman, by much labor and considerable expense, as the petition alleged, located and developed gold in the land in question, they did the very thing they were expected to do, and thereby furnished the contemplated consideration, which changed the nudum pactum into a valid and binding contract. "A contract is often such that, until something is done under it, the consideration is imperfect; yet a partial performance, or a complete performance on one side, supplies the defect. If, for example, one promises another, who makes no promise in return, to pay him money when he shall have done a specified thing, if he does it, not only is the contract executed on one side, but also the consideration is perfected, and payment can be enforced. And, in more general terms, when from any cause the party from whom the consideration moves is not compellable to render it, if he does render it, the contract becomes thereby perfected." Bishop, Contracts, § 87. To the same effect, see Parsons on Contracts, *451; Clark on Contracts, pp. 169, 170; Story on Contracts, § 569; 7 Am. & Eng. Enc. L. 115. In Hammond on Contracts, p. 683, it is said: "The test of mutuality is to be applied, not as of the time when the promises are made, but as of the time when one or the other is sought to be enforced. A promise may be unenforceable for want of mutuality when made, and yet the promisee may render it valid and binding by supplying a consideration on his part before the promise is withdrawn." This doctrine is well settled by many adjudged cases cited by the above-named text-writers, and has been fully recognized by this court. Sivell v. Hogan (this day decided) 46 S.E. 67, and cases therein cited.

Counsel for defendant in error cite Peacock v. Deweese, 73 Ga. 570; Grizzle v. Gaddis, 75 Ga. 350; Lindsay v. Warnock, 93 Ga. 619, 21 S.E. 127; Morrow v Southern Express Co., 101 Ga. 810, 28 S.E. 998; Perry v. Paschal, 103 Ga. 134, 29 S.E. 703; and Marietta Paper Co. v. Bussey, 104 Ga. 477, 31 S.E. 415--but nothing was decided in any of these cases in conflict with the principle above announced. The contract in Peacock v. Deweese was purely unilateral when made, and it was not even claimed that the promisee did anything afterwards which furnished a consideration. Under the facts the court held that a specific performance could not be decreed in behalf of the promisee. It was held in Grizzle v. Gaddis that: "A parol contract, by which it was agreed that, if a man and his family would take possession of certain land, and cultivate and improve it, they should have it as their home during the lives of himself and wife, paying therefor a...