Talbott v. Stemmon's ex'R.

• Decision Date: 21 October 1889
• Citation: 89 Ky. 222
• Parties: Talbott v. Stemmons' Ex'r.
• Court: Kentucky Court of Appeals

89 Ky. 222

Talbott v. Stemmons' Ex'r.

Court of Appeals of Kentucky.

October 21, 1889.

APPEAL FROM BOURBON COURT OF COMMON PLEAS.

J. H. BRENT FOR APPELLANT.

LOCKHART & LYNG FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

This case comes from the Superior Court by an appeal.

Mrs. Sallie D. Stemmons, the step-grandmother of the plaintiff, Albert R. Talbott, made with the latter the following agreement:

                                                    "APRIL 26, 1880
                

"I do promise and bind myself to give my grandson, Albert R. Talbott, five hundred dollars at my death if he will never take another chew of tobacco or smoke another cigar during my life, from this date up to my death; and if he breaks this pledge, he is to refund double the amount to his mother.

                     "Signed                 ALBERT R. TALBOTT
                                            "SALLIE D. STEMMONS."
                

The grandmother died, and this action was instituted by the grandson against her personal representative to recover the five hundred dollars, the plaintiff alleging that, from the date of the agreement to the filing of this action by him, he had not smoked a cigar or taken a chew of tobacco, &c.

A general demurrer was filed to the petition that was sustained by the court below, and the action dismissed. It is insisted by counsel for the personal representative that the agreement by the grandmother to pay the five hundred dollars is not based on a sufficient consideration, either good or valuable, and being a mere gratuitous undertaking, cannot be enforced.

There is nothing in such an agreement inconsistent with public policy, or any act required to be done by the plaintiff in violation of law, but, on the contrary, the step-grandmother was desirous of inducing the grandson to abstain from a habit, the indulgence of which, she believed, created an useless expense, and would likely, if persisted in, be attended with pernicious results. An agreement or promise to reform her grandson in this particular was not repugnant to law or good morals, nor was the use of what the latter deemed a luxury or enjoyment a violation of either, and so there was nothing in the law preventing the parties from making a valid contract in reference to the subject-matter.

In the classification of contracts by the elementary writers, it is said: "An agreement by the one party to give, in consideration of something to be done or forborne by the other party, or the agreement by one to do or forbear in consideration...