Pulliam v. Schimpf

• Decision Date: 04 February 1896
• Citation: 19 So. 428,109 Ala. 179
• Parties: PULLIAM v. SCHIMPF.
• Court: Alabama Supreme Court

19 So. 428

109 Ala. 179

PULLIAM v. SCHIMPF.

Supreme Court of Alabama

February 4, 1896

Appeal from circuit court, Mobile county; James T. Jones, Judge.

Action by Jarrett T. Pulliam against Charles Schimpf for damages for breach of contract. From a judgment for defendant, plaintiff appeals. Affirmed.

Pillans Torrey & Hanaw, for appellant.

L. H Faith, for appellee.

HEAD J.

This case formerly came before this court upon assignments, as error, of the rulings of the court below sustaining demurrers to the complaint. 14 So. 488. The contract sued upon by appellant, Pulliam, as averred in the first count, was that he and appellee (defendant below) agreed to establish and run a shooting gallery in a certain specified building in Mobile which was then in possession of defendant, the business to be managed and conducted by plaintiff, under which agreement plaintiff was to fix up the room and necessary partitions in a manner suitable for a shooting gallery, and to furnish the rifles and targets and other necessary apparatus, and the defendant was to furnish the building, and the net profits arising from said business were to be divided between the plaintiff and defendant. By the terms of the agreement (which was made February 24, 1892) the business was to continue until about the 1st of April, or at least until after Mardi Gras Day; and shortly after Mardi Gras Day, and about the 1st of April, it was agreed between the parties that the business should continue upon the same terms, and under the said agreement, so long as the business paid expenses; and the plaintiff, in addition to what he had already done, was to paper the walls of the room in which the business was carried on. The plaintiff averred performance of the agreement on his part until May 15th, following, when defendant broke it, on his part, by terminating the business, in a manner specified, causing a loss to plaintiff of profits which he alleges he would have realized from a continuance of the business. The second count is substantially the same, except it alleges only one agreement, and that, in reference to the duration of the business, it was to continue so long as the same was profitable or paid expenses. The original demurrer to this complaint, which the circuit court sustained, raised the question whether or not the agreement created a partnership between the parties; and on appeal this court confined its consideration to that question, and held that a partnership was not created, because there was no stipulation that the contracting parties should share the losses, and reversed the judgment. After remandment, new demurrers were interposed, taking the position that, whether a partnership or not, the agreement was for no definite period, and was dissolvable at the will of either party. These demurrers were overruled, and the cause went to trial upon issues joined upon pleas, and resulted in a verdict and judgment for defendant, from which the plaintiff prosecutes this appeal. The assignments of error all relate to the admeasurement of damages.

If the objection made by the defendant to the complaint was well taken, it follows, from its nature, that a substantial cause of action, which would support a judgment, is not disclosed and, though the ruling upon the demurrers is not before us, yet as in no event could there be a recovery, for the want of a cause of action, it is proper to dispose of the case here upon the principle invoked by the objection. In fact, such would be our course ex mero motu, in the absence of objection. A contract void on its face for uncertainty or other cause will not be enforced, and hence will not furnish a cause of action which will support a judgment. We think there can be no doubt that the contract in the present case is of that character. By its terms the business was to continue so long as the business paid expenses, or was profitable. If the business should, so long, prove either profitable, or merely sufficient to pay expenses, both parties were, if the agreement is valid, bound to keep it going, without limit. The defendant was bound, for a lifetime, to furnish his house for carrying on the business, though he may receive but a farthing of profit as compensation for its use, or though he receive nothing at all, if the business proved sufficient to pay the expenses of its operation. Not only this, but he imposed a perpetual, indefinite restraint upon the alienation or other disposition or use of the house. The plaintiff bound himself for a lifetime, if the business should so long yield enough to pay its expenses, to furnish his guns, etc., and his own personal labor and services, to the carrying on of the business, for which he might receive a bare farthing, or no compensation at all. How was the end of the contract to be ascertained? Let us suppose the parties at a disagreement as to whether the business was profitable, or sufficient to pay expenses, the solution of which was necessary to determine whether it should proceed or be dissolved. The plaintiff, we will say, contends that upon a fair consideration and estimate of the assets and liabilities, and of repairs, replenishments of stock, and other expenses necessary to be incurred, the business is not paying expenses, to say nothing...