Rains v. Patton

• Decision Date: 17 December 1914
• Docket Number: 562
• Citation: 67 So. 600,191 Ala. 349
• Parties: RAINS v. PATTON.
• Court: Alabama Supreme Court

67 So. 600

191 Ala. 349

RAINS v. PATTON.

No. 562

Supreme Court of Alabama

December 17, 1914

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Assumpsit by A.B. Rains against John W. Patton. Judgment for defendant and plaintiff appeals. Affirmed.

Allen &amp Bell, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

SOMERVILLE J.

The vital and decisive question in this case is whether or not the written agreement upon which the plaintiff must rely for a recovery is obnoxious to the statute of frauds.

The agreement in question is as follows:

"Birmingham Ala., 5/23/08.

"This agreement witnesses that whereas A.B. Rains has purchased the drug stock and fixtures of the Patton-Pope Drug Co. situated on the corner of Second Ave. and Twentieth St., Birmingham, Ala., and has paid the said P.P. Drug Co. in cash for the same, now John W. Patton of the said firm hereby covenants and binds himself unto the said A.B. Rains to repurchase said stock and fixtures from the said Rains at the same price he has paid for the same at the expiration of two (2) yrs. from this date should the said Rains elect to sell the same. That is, the said Patton agrees to purchase said stock and fixtures at cost as they shall inventory in two years if Rains elects to sell the same. Wear and service to be deducted from fixtures."

It will be observed that this agreement is upon its face a nudum pactum--a purely gratuitous promise on the part of the defendant, Patton, to buy a drug business at the end of two years if the plaintiff, Rains, then offered to sell it to him. Rains is utterly without obligation in the matter, and has, prima facie, neither given value to Patton nor suffered any detriment himself.

It is claimed by the plaintiff that there was in fact a consideration of value which moved to the defendant. It is, however, so far as the statute of frauds is concerned, wholly immaterial whether there was or was not a consideration in fact. If the consideration be not expressed in the writing, the agreement does not bind.

This agreement was by its terms not to be performed for more than a year, and hence falls within subdivision 1 of the statute (section 4289, Code 1907); and, no consideration for the defendant's promise being expressed in the writing, the promise is without legal value or effect.

Contracts within the statute are, of course, not relieved of this requirement by section 3966 of the Code, under which a written contract upon which the suit is founded is prima facie presumed to...