Pool v. Horner

Bryan, J., delivered the opinion of the Court. The statement filed as a bill of particulars alleges that there was an agreement between the plaintiff below and the testator of defendants, that for certain valuable considerations the said testator would buy a house and lot for plaintiff, and permit him to occupy it, and if plaintiff could obtain a larger price than the said testator paid for it, that he would pay to the plaintiff what might be obtained for it, over and above the price originally paid for it. The consideration on the part of. the plaintiff was that he gave a note for $150 because of an old debt for $125 which he owed the testator, and that he agreed to pay him annually the interest on the purchase money of the house and lot, and all taxes, insurance, and ground-rent thereon, and agreed to keep the house in good repair. The plaintiff ¹³³ paid the note and all interest due on it, and performed all the other stipulations of his agreement.

The house and lot cost $1465, and were sold at the desire and request of the plaintiff for the sum of $1100 by the testator, who received the purchase money and thereupon agreed to pay the plaintiff the sum of $235, and afterwards on various occasions promised to pay the same. The contract thus alleged was for the purchase of an interest in land, for the sale of it under certain circumstances, and for the payment to the plaintiff of a portion of the price received by the owner. Being by parol, it comes fully within the fourth section of the Statute of Frauds, as much so as that set up in White, Adm'x vs. Coombs, Ex’r, 27 Md., 489 . The plaintiff could not have maintained an action on this contract while it was executory, but the testator’s express promise to pay after it was executed introduced a new feature into the transaction.

It is stated in the notes to Osbourne vs. Rogers, 1 Wms. Saunders, 264 b, as a settled rule “that a past consideration is not sufficient to support a subsequent promise, unless there was a request of the party, express or