Stanley v. Sumrall

• Decision Date: 01 May 1933
• Docket Number: 30399
• Citation: 147 So. 786,167 Miss. 714
• Court: Mississippi Supreme Court
• Parties: STANLEY et al. v. SUMRALL

147 So. 786

167 Miss. 714

STANLEY et al. v. SUMRALL

No. 30399

Supreme Court of Mississippi

May 1, 1933

Division A

Suggestion Of Error Overruled, June 12, 1933.

APPEAL from the circuit court of Wayne county HON. J. D. FATHEREE Judge.

Separate suits by Mrs. Fannie Sumrall Stanley and others against Lorenzi Sumrall, consolidated and tried together. From a judgment in favor of the defendant, the plaintiffs appeal. Reversed, and cause remanded.

Reversed and remanded.

Fishel & Stevens, of Hattiesburg, and Arthur G Busby, of Waynesboro, for appellants.

It was error to grant the peremptory instruction.

American Trading Co. v. Ingram-Day Lumber Co., 69 So. 707, 110 Miss. 31; New Orleans & N.E. R. Co. v. Jackson, 105 So. 770, 140 Miss. 375; New Orleans & N.E. R. Co. v. Martin, 105 So. 864, 140 Miss. 410; Mobile & O. R. Co. v. Clay, 125 So. 819, 156 Miss. 463, certiorari denied Clay v. Mobile & O. R. Co., 51 S.Ct. 24, 282 U.S. 844, 75 L.Ed. 749; Gulf & S. I. R. Co. v. Prine, 118 Miss. 571, 100 So. 521; New Orleans, etc., R. Co. v. Penton, 135 Miss. 571, 100 So. 864; Yates v. Houston, 141 Miss. 881, 106 So. 110.

In granting a peremptory instruction, the court must assume as true the testimony of the party against whom the peremptory instruction is given, and must draw all favorable inferences for such party which might reasonably be drawn by a jury.

Lowe v. Mobile & O. R. Co., 149 Miss. 889, 116 So. 601; Wager v. East Coast Hospital Assn., 141 So. 743; Lee County Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422; Fatheree v. Griffin, 121. So. 119, 153 Miss. 570.

We submit that the record discloses that there was a valid and binding contract made in the home of the heirs. The proposition made by the defendant and his sister was that if the heirs would not contest the will of Roann Sumrall, that they would divide this ten thousand dollars ($ 10,000) to each of them equally among the other children, and this proposition was accepted by the plaintiffs, and thereupon the defendant and his sister paid to each of the heirs sixty dollars ($ 60), or, in other words, divided four hundred and eighty dollars ($ 480) among all eight of the heirs of Roann Sumrall.

It may be laid down as a general rule that there is a sufficient consideration for a promise if there is any benefit to the promisor or any loss or detriment to the promisee.

13 C. J. 315 (150) C.; Byrne v. Cummins, 41 Miss. 192; O'Neil v. Berry, 25 Miss. 9; Magee v. Catchings, 33 Miss. 672; Keith v. Miles, 39 Miss. 442.

An attempt to define consideration as used in the law of contracts has been made by saying that it consists in what is actually given or suffered and accepted for a promise.

6 R. C. L. 652.

A long series of decisions has established the rule that a benefit to the promisor or a detriment to the promisee is a sufficient consideration for a contract.

6 R. C. L. 654; Hind v. Holdship (Pa.), 2 Watts 104, 105. 26 Am. Dec. 107; Thomas v. Thomas, 2 Q. B. 851, 859, 42 R. C. L. 945, 114 Reprint 230; Kirkpatrick v. Muirhead, 16 Pa. 117, 126 (quot, In re Dutton, 181 Pa. 426, 436, 37 A. 582); Doyle v. Dixon, 97 Mass. 208, 213; Ricketts v. Scothorn, 57 Nebr. 51, 54, 77 N.W. 365, 73 Am. St. Rep. 491, 42 L. R. A. 794; Marr v. Burlington, etc., R. Co., 121 Iowa 117, 96 N.W. 716; Harlan v. Harlan, 102 Iowa 701, 72 N.W. 286.

A test of good consideration for a contract is whether the promisee at the instance of the promisor, has done, forborne, or undertaken to do anything real, or whether he has suffered any detriment, or whether in return for the promise, he has done something that he was not bound to do, or has promised to do some act or to abstain from doing something.

Presbyterian Bd. of Foreign Missions v. Smith, 209 Pa. 361, 58 A. 689.

Permitting a party to control suit is a sufficient consideration.

Goodspeed v. Fuller, 71 Am., sec. 572, 46 Me. 141; Case v. Kinney, 7 Ohio Dec. (Reprint) 178.

Forbearance to sue is a good consideration.

When a person bona fide believes he has a fair chance of success in a suit against another, his forbearance to sue constitutes a good consideration.

Henderson v. Kendrick et al., 89 So. 635; Callisher v. Bischoffsheim, L. R. 5 Q. B. Cas. 449, text 452; 6 R. C. L. 656; 13 C. J. 324; 12 C. J. 324.

Compromise or modified contract in settlement of bonafide dispute as to doubtful claims constitutes binding agreement.

D. L. Fair Tie Co. v. Warrell, 112 So. 24, 147 Miss. 412.

Compromises having for their object the settlement of family difficulties or controverses are favored at law and in equity if at all reasonable.

12 C. J. 322, 324; Layer et al. v. Layer et al., 184 Mich. 663, 151 N.W. 759; Marsant v. Marsant (Kan.), 57 P. 958; Merkert v. Grobe (Iowa), 90 N.W. 490; Schoonmaker v. Gray, 208 N.Y. 209, 101 N.E. 886.

Arthur G. Busby, of Waynesboro, for appellants.

It is undisputed that the appellants in the case at bar were honest in their belief that they could successfully contest the will and that appellee was at least doubtful as to whether appellants would or would not be successful and therefore, paid them the eighty dollars each at the time of the contract to hold the contract with a further promise to divide the twenty thousand dollars as soon as the will was established in the October term of chancery court, 1931. It is also admitted that the declaration filed by appellants shows this fact.

Sanford v. Huxford, 32 Mich. 313, 20 Am. Rep. 647.

If parties act in good faith, even where they know all the facts, and there is a promise without legal liability to base it on, the courts hesitate to disturb the agreement of parties on any assumption that an advantage which they have obtained and conceived to be worth paying for is not considered valuable.

Paris v. Dexter, 15 V. T. 349; Wade v. Simeon, 2 C. B. 565; Gould v. Armstrong, 2 Hall (S. C.) 267.

The compromise of a suit is a sufficient consideration.

Cook v. Wright, 1 B. & S. 559; Union Bank v. Gary, 5 P. E. T. 113.

In Longridge v. Dorville, 5 B. & D. Ald. 117, it was held a compromise would not fail unless it was clear there could be no possible liability.

Sullivan v. Collins, 18 Iowa 228.

Agreement by beneficiaries under a will with an heir at law, who is cut off by the will and threatens to contest it on the ground of undue influence to pay him money, in consideration of his desisting, is valid if the heir at law honestly thought he had reasonable ground for setting up the claim.

Bellows v. Sowles, 55 Vt. 391, 45 Am. Rep. 621.

We find from all cases cited by appellee that none are cases where brothers and sisters are litigating on an estate left by their parents; all of the cases cited by appellee seem to be cases where the plaintiff had no right whatever to recover.

It is the policy of the law to encourage and facilitate amicable adjustment by families of disputes as to their interest in common property or the division of such property according to the agreement of all parties or interests.

Hodge et al. v. Joy et al. (Ala.), 92 So. 171.

Shannon & Schauber, of Laurel, for appellee.

Our contention is that there was no valid consideration for the promise made by appellee to appellants and for that reason the plaintiffs cannot recover in this suit.

13 C. J. 345, sec. 195.

There are a few American cases which seem to support the early English cases which hold that one has a right to sue only when his claim is actually in law a valid claim, and that forbearance to sue on an unfounded claim can never support a promise given therefor.

Foster v. Metts, 55 Miss. 70; Newell v. Fisher, 11 S. & M. 431; Prater v. Miller, 25 Ala. 320, 60 Am. Dec. 521; Sharp v. Rogers, 12 Minn. 174; House v. Callicott, 83 Miss. 506; Fetterman case, 139 So. 406, 162 Miss. 547; Montgomery v. Grenier et al., 117 Minn. 416, 136 N.W. 9.

It was held in Neibles v. Railway Co., 37 Minn. 151, 33 N.W. 332, that to sustain a compromise and settlement it must appear that the claim or controversy settled, though perhaps not in fact valid in law, was presented and demanded in good faith and upon reasonable grounds for inducing the belief that it was enforceable. And the rule thus stated is the prevailing one in this country. It has been applied in numerous cases involving the settlement of the estate of deceased persons; the courts holding that a claim presented against the estate, a promise to refrain from attempting by legal proceedings to enforce which forms the basis for a settlement, must have some plausible or reasonable ground for its support--facts sufficient to justify a good faith belief in the merits of the claim or demand.

Crawford v. Engram, 157 Ala. 314, 47 So. 712; Prater v. Miller, 25 Ala. 320, 60 Am. Dec. 521; Bellows v. Sowles, 55 Vt. 391, 45 Am. Rep. 621; Busby v. Conoway, 8. Md. 55, 63 Am. Dec. 688; House v. Callicott, 83 Miss. 506, 35 So. 761.

It has been declared that a promise in consideration of forbearance is not binding if there was originally no cause of action, or if the claim threatened to be enforced is invalid and worthless.

6 R. C. L. 661.

Counsel in their brief asked that the case be reversed because the alleged consideration was a family settlement. We call the court's attention to the fact that each of the appellants, who were the plaintiffs in the court below, had not lived with their father for more than twenty-five years and that each of them was of mature years and maintained a home of his or her own.

"An agreement on the part of a brother of a deceased person with another brother and sister to refrain from contesting the will of decedent in consideration of the promise of the latter, beneficiaries named in the will, to pay him a certain sum of money, is not, on the facts stated in the opinion, a ...