Mathewson v. Fitch
Before: Cope, Norton
Synopsis
Appeal from the Third Judicial District.
The complaint in this case sets forth in substance:
That there had been a judgment rendered in the District Court of the Fourth Judicial District, in favor of the defendant, in an action of ejectment wherein one Adams was plaintiff, and one Lansing defendant. That the plaintiff, Adams, in that action, claimed the exclusive title of the land sought to be recovered therein, through and under the will of Luis Peralta. That by said will the premises then in controversy, as well as the whole Rancho of San Antonio, of which said premises were a part, were devised to the four sons of said Luis, from and under whom defendant therein derived his title. That the plaintiff, Adams, in that case claimed to derive his title from the daughters of Peralta, alleging that the “ will ” was invalid, and that the rancho descended in equal proportions to all the sons and daughters of Peralta in common, and that he, Adams, was therefore entitled to recover a portion of the premises sued for.
That on the trial of the action in the said District Court judgment was rendered in favor of defendant, Adams, thereby confirming the “ will ” as valid, and thus, in effect, deciding that by it the four sons had a valid title to the San Antonio Rancho, and that the daughters, their “ sisters,”, had no title whatever thereto.
That an appeal had been taken from said judgment, and said appeal being then pending and undetermined in the Supreme Court of the State of California, the defendant Fitch, on the fifth day of February, 1861, made and delivered to E. W. F. Sloan and D. P. & A. Barstow (who were attorneys for defendant in case of Adams v. Lansing), an agreement in writing, in the words and figures following, viz.:
“ Memorandum of an agreement between C. L. Fitch, first part, and E. W. F. Sloan and D. P. and A. Barstow:
I, the undersigned, do hereby agree to pay to E. W. F. Sloan and D. P. and A. Barstow the sum of five hundred dollars on demand after the said Sloan and Barstow shall (as attorneys) have secured a final decree of the Supreme Court in any of the cases now pending, or hereafter instituted, in which the “ sisters” claim adversely to the title under the “ will ”—which shall declare the said sisters’ title null, and that the title of the “ Peralta Sons ” is the only valid title under the “ will.” Provided, such decision of the Supreme Court be obtained by and through the efforts (as attorneys) of said Sloan and Barstows on or before the first day of January, 1862.
Encinal San Antonio, February 5th, 1861.
Chas. L. Fitch.”
The complaint then avers that said Sloan and Barstows did well and faithfully perform the legal services aforesaid, mentioned in said agreement, and did, on the seventh day of May, 1861, by their legal services as attorneys, secure a final decree and decision of said Supreme Court, in said case of Adams v. Lansing, etc., which declares that the title derived under said “ will,” by his said sons, was the only valid title to said rancho, and that the adverse claim thereto, of the said “ sisters,” was null and void.
Norton, J. delivered the opinion of the Court—Cope, C. J. concurring. The obtaining the judgment which was rendered in the case of Adams v. Lansing (17 Cal. 629) was a performance of the condition upon which the defendant’s promise to pay the five hundred dollars depended. It may be readily imagined that the defendant supposed the decree which was to be obtained would forever settle the title of the parties claiming under the “ will,” but that is not the thing specified in the written promise. That only requires that the decree in some case then pending, or thereafter to be instituted, should declare the sisters’ title to be void, and the sons’ title to be the only valid title under the “ will.” The Supreme Court in that case rendered a judgment that the plaintiff who claimed under the sisters had no title upon which he could recover, and that the defendant who claimed through the sons under the “ will ” had a title which entitled him to recover. This was, in effect and substance, a decree in that case that the sisters’ title was null and void, and that the title of the sons under the “ will” was the only valid title.
The promise was not a contract depending upon a mutual promise for a consideration. The doing of the thing specified constituted the consideration which made the promise binding. In the case of Train v. Gold (5 Pick. 380) the Court state the rule in these words : “ Thus, if A promises B to pay him a sunrof money if he will do a particular act, and B does the act, the promise thereupon becomes binding, although B at the time of the promise does not engage to do the act. In the intermediate time the obligation of [94]the contract or promise is suspended; for, until the performance of the condition of the promise there is no consideration, and the promise is nudum pactum; but on the performance of the condition of the promise, it is clothed with a valid consideration which relates back to the promise, and it then becomes obligatory.” To the same, effect is the case of Lousdale v. Brown (4 Wash. 148).
The argument that the promisees have done nothing in consequence of the promise, because they were already retained in the action by other parties, and were under obligation to render these services, is not valid. The complaint avers that the work was done in consideration of the promise. The answer denies only the doing of the work, and does not claim that it was done for any other person or for any other consideration. When the doing of the work was proved, the cause of action set forth in the complaint was proved under the issue presented by the answer.
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