Daniel v. Hughes

¶1Practically every question presented.on this appeal was settled adversely to appellant’s contention upon former appeal (187 Ala. 41, 65 South. 518), with perhaps the exception as to the plaintiff’s right to recover under counts A and B, brought in the case by amendment at the last trial, and which were not considered upon the former appeal; the question being merely alluded to in a general way. These amended counts A and B, proceed upon the theory of a promise by the defendant to pay a fixed sum, in settlement of a dispute or controversy between the plaintiff and defendant, but neither of said counts aver that the defendant was due the plaintiff anything upon the matter or transaction out of which the controversy arose, or any other facts showing that the controversy was supported by a valuable consideration.

¶2(1) While some confusion may have existed in some of our earlier cases as to what would be a sufficient consideration to support a contract based upon the settlement of a dispute or controversy between the parties thereto, it is now well settled that the existence of a mere controversy will not suffice unless based upon some consideration in the shape of something beneficial to one party or detrimental to the other.

¶3*370(2) As touching the compromise and settlement of claims, whose validity is afterwards denied, in a late case we said: “The question in this class of cases is .whether there is a consideration to uphold the release, or agreed compromise. The surrender of a mere assertion of claim, or the withdrawal of a threat to sue, when the claim is without legal merit, whether its legal validity is known or not, will not uphold a release, or agreement of compromise.’ ‘When a claim is absolutely and clearly unsustainable, at law or in equity, its compromise constitutes no sufficient legal consideration.’ ”—Russell v. Wright, 98 Ala. 652, 13 South. 594; Ernst Bros. v. Hollis, 86 Ala. 513, 6 South. 85; Thompson v. Hudgins, 116 Ala. 93, 22 South. 632; Crawford v. Engram, 157 Ala. 314, 47 South. 712; Burleson v. Mays, 189 Ala. 111, 66 South. 36.

¶4(3, 4) Amended counts A and B, setting up as they do that the consideration in support of the promise to pay was the settlement of a controversy existing between the parties, and not charging that the controversy so settled had any legal merit, that is, involved any obligation between the parties, whereby the one was to be benefited or the other to suffer detriment to the extent that said controversy was based upon a valuable consideration, were subject to demurrer.—Thompson v. Hudgins, supra,and cases there cited. The trial court, however, improperly overruled the appellee’s demurrer to these counts, and in determining whether or not they will support a judgment we must give them a liberal construction and resolve all reasonable inference in favor of them as stating a cause of action, and must infer that the pleader meant to charge such a controversy as would afford a valuable consideration for the compromise, and which the evidence fails to establish, and the defendant was entitled to the general charge as to these counts.

¶5(5) It may be conceded that the claim in settlement of the controversy could have been recovered under the common counts; yet the proof failed to show that the controversy was such as to afford the basis of a valuable consideration, and this defense was available under the general issue.—Ivy C. Co. v. Long, 139 Ala. 535, 36 South. 722; Shannon v. McElroy, 3 Ala. App. 519, 57 South. 118.

¶6The judgment of the city court is affirmed.

¶7Affirmed.