Charles H. Jones, Appellant, vs. H. E. McCallum, Appellee, 21 Fla. 392

The Chief-Justice delivered the opinion of the court: This suit was brought by the appellee, H. E. McCallum, widow of H. B. McCallum, on the following agreement: “ I promise to pay to IT. B. McCallum, or in the event of his death before the fulfillment of this obligation, to his wife, H. E. McCallum, one thousand dollars in equal monthly installments, commencing from this date, in consideration whereof the said H. B.

McCallum promises to write for the editorial eolums of the Times- Union newspaper, or by whatever name I may choose to call the newspaper to result from the consolidation of the Times and the Florida Union, from time to time, during the period of one year next ensuing, on matters of public interest as his health will permit, and as may accord with his sentiments, and to give me the benefit of his advice and counsel touching the conduct of said newspaper, and in any way he can with propriety and a due regard for his health promote and aid the successs of the said newspaper, but all obligations and promises on his part herein contained shall cease with his death: Provided, that I shall have the right to reject or decline any

article that may be contributed by him for any reason satisfactory to me, and further agree and promise to pay to the said McCallum, or in the event of his death to his wife, five hundred dollars, only, however, in the event that at the end of one' year from the commencement of the printing of the said consolidated newspaper the net income of said newspaper, from its circulation and advertising and job departments, shall amount to not less than seventy-five hundred dollars. “At Jacksonville, Florida, this February 1st, 1883. “ Signed, C. H. Jones.” The defendant filed his plea, setting up that the said II. B.

McCallum died in a day or two after making the contract, and that he never wrote anything whatever for the columns of said newspaper, that he never gave defendant any advice or counsel touching the conduct of said paper, and that he did not in any way promote or aid the success of the said newspaper, “ wherefore by reason of the utter failure of the said H. B. MCallum to do or perform either of the acts agreed by him to be performed the consideration for said promise wholly failed.” To this the appellee demurred. The demurrer was sustained by the court and appellant appealed. .

The sustentation of the demurrer is the only error assigned. The agreement says: “ I promise to pay to H. B.

Mc-Callum, or in the event of his death before the fulfillment of this obligation, to his wife, * * * one thousand dollars in equal monthly installments, * * * in consideration whereof the said McCallum promises to write for the editorial columns of the Times-Unión * * for one year. * * But all obligations and promises on his part to cease with his death.” If McCallum should die immediately after signing the contract and before doing any of the things mentioned in it, Jones was to pay the same sum to his widow that he was to pay McCallum himself if he had lived and performed his part of the agreement.

In so far as it bears this construction it was void on its face. It is equivalent to an agreement to pay a sum certain for cei’tain services to be rendered with the further agreement to pay the same sum if the services were not performed. To require Jones to pay the sum agreed on whether Mc-Callum should perform the services or not would in the latter event be to force him to pay money without receiving the slightest, benefit or advantage therefor to a person who had not been put to any detriment or even inconvenience.

Now one or the other of these things, benefit or advantage-to the promissor or detriment or inconvenience to the promisee, are necessary to make a legal consideration. Here there is neither. The law aptly terms an agreement to do

an act or to pay money or other thing where there is no consideration for it a nudum pactum—a naked agreement—a promise without legal support, which the law will not enforce, no matter whether verbal or written, or however earnestly and solemnly made. The contract in this view is void for want of consideration, that is to say, so far as it promised payment for no-service whatever. The promise to H. B. McCallum to pay to him a sum certain for certain services would be free from, the objection of a want of consideration. A promise is a sufficient consideration to support a promise.

But when a promise to pay is made upon the consideration of a promise to perform certain services, before payment can be demanded the services must be performed. If the services-are not performed the consideration has failed and the promise based thereon is discharged. In this case the plea alleges that no service of any kind was performed. The demurrer to the plea admits its truth. There can be but one determination of the question. If no service was performed no pay was due. The practical result of a want of consideration and failure of consideration are the same.

In the first case the agreement is void ; in the second the agreement is valid at the time of making, but cannot be enforced because of subsequent failure of the consideration on which it was based. We think the counsel for appellant puts the proper construction on this very peculiar agreement.

ITe says: “The ■clear inference to be drawn from it is that Jones is to pay so much money for some benefit dependent as to extent, and amount upon the length of time he should live and ability and strength to do the work.” Again, “had anything been ■done by McCallum under the contract we admit that Jones might have been liable for the full year’s compensation.” We believe that the agreement meant, “if you commence these services the full amount shall be paid whether you finish them or not.” In that view a part performance, no matter how slight, would have furnished a sufficient consideration to have authorized a demand of the one thousand dollars.

We do not think that the agreement meant to pay in the event no service whatever was performed, and if it did, as we have seen, such a promise was void. •Judgment reversed and cause remanded.