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after, until the death of Wilson, he that this court will not, in the aband the plaintiff were mutually sence of a bill of exceptions or a bill promised and engaged to marry of evidence in an ordinary action each other; (2) that, while the note showing what occurred upon the was never actually delivered to the trial below, look to anything except plaintiff, Wilson retained the cus- the sufficiency of the pleadings. tody thereof with the intention on This is necessarily so, because the his part that same should become court has nothing before it from the property of the plaintiff, and which it may determine the correctthat he would thereafter actually ness of any rulings of the court bedeliver the same to her.

low on the trial, and will, in the The conclusions of law separately absence of such a showing, affirm stated are: (1) That the facts re- the judgment, if the pleadings supcited show a constructive delivery port it. We are likewise aware of of the note by Wilson to the plain the rule that, in an ordinary action tiff; (2) that the note was based where there has been a trial before upon a valuable consideration, to the judge, if one desires to take adwit, the promise of the plaintiff to vantage on appeal of any ruling marry Wilson, which promise was made on the trial as to the admisin existence at and prior to the date sion or rejection of evidence, he of the note, and continued in exist- must point out, in his motion and ence until the death of Wilson. grounds for a new trial, the errors

Thereupon the court entered a upon which he relies, so that the judgment for the plaintiff on the court may correct its own mistakes, note, and the defendant at the time and grant a new trial without the excepted to the findings of fact, the necessity of an appeal. conclusions of law, and the judg- But here we have in the tranment of the court, and prosecutes script the pleadings, the findings of this appeal.

fact by the court, and the concluThere was no motion for a new sions of law by the court, based trial, nor is there in the transcript upon the findings of fact, and a any bill of evidence or exceptions, specific exception to the conclusions except as stated.

of law. Therefore, accepting the It will be observed that the court findings of fact as conclusive upon in its findings of fact wholly ignored this court, which we do, and recogthe issue that the consideration for nizing the sufficiency of the pleadthe note was for service theretofore ings to support the judgment, which rendered, and we will therefore as- we do, still we have sume either there was no evidence

before us the ques- tion open-cor

Appeal-queson this issue, or, if there was, it was tion whether the rectness of conunfavorable to the plaintiff; and court,

upon

the will therefore treat the findings as pleadings and the facts as found, having reference to the sole con- erroneously applied the law. sideration shown by the evidence. The exception to the conclusions

At the outset we are met with the of law directed the attention of the contention that, as this is an ordi- court to the only thing here comnary action tried by agreement be- plained of as effectually as would a fore the judge of the court without motion for a new trial. Neither a a jury, there being no motion and motion for a new trial, a bill of evigrounds for a new trial, no bill of dence, nor a bill of exceptions would evidence, and no bill of exceptions, aid this court in any way in deterthe only question before this court mining the single question whether is the sufficiency of the pleadings. the court, upon a given state of the We cannot assent to that as a rule pleadings and a conceded state of of practice, under the facts pre- the facts, properly applied the law. sented by this record.

Section 332 of the Civil Code proWe are aware of the general rule vides: “Upon trials of questions of

clusion of law.

(200 Ky. 609, 255 S. W. 267.) fact by the court, it shall not be nec- ment, and there was merely a genessary for the court to state its find- eral exception to the judgment, and ing, except, generally, for the plain- no specific exception to the conclutiff or defendant, unless one of the sions of law. No motion for a new parties request it, with the view of trial was filed, and the court applied excepting to the decision of the the general rule. court upon the questions of law in- In the case of Albin Co. v. Elvolved in the trial; in which case linger, 103 Ky. 240, 44 S. W. 655, the court shall state in writing the the court held that, under the proconclusions of fact found, separate- visions of $ 332 of the Civil Code, ly from the conclusions of law." upon the trial of fact by the court,

Manifestly the language em- either party may request the court ployed contemplates that a party to state in writing the conclusions who desires to except to the deci- of fact found, separately from the sion of the court on a question of conclusions of law, but that such relaw may, by requesting a separa- quest is not required to be made betion of the law and facts, get the fore judgment is entered, but should record in such condition that he be made thereafter within the time may raise his question of law by an

allowed by law for entering a moexception to the conclusions of law, tion for a new trial; and likewise without the necessity of filing a mo- held that, upon such a trial by the tion and grounds for a new trial, or judge without a jury, a motion for a any formal bill of exceptions.

new trial is necessary to have reIn the case of Beeler v. Sandidge, viewed on appeal any error commit20 Ky. L. Rep. 1581, 49 S. W. 533, ted by the lower court during the tried by the judge, there was trial, and, in concluding that opinneither a motion for a new trial nor ion, said: “We now hold that a. reexceptions to the court's conclusions quest for a separation of law and of law, and the court, after quoting facts, in a case like the one at bar, the section of the Code referred to, must be made within the time alsaid: "Upon the trial of this case lowed by law for moving for a new in the court below there was no re- trial. A party may also move for a quest that the court should state new trial as well as to make the reseparately its conclusions of law quest for separate findings. He may and fact, nor were any exceptions do either or both. If a separation taken to its conclusions of law. only be given, as requested, this And, in the absence of such excep- court will consider the law and the tions, this court has no power to facts as found, and review the correview the errors of law complained rectness of each.” of, and, as the pleadings authorized There is no fair interpretation of the judgment, it must be affirmed." that holding except that an excep

Clearly the court, by inference, tion to the conclusion of law, where meant that under the Code provi- there has been a separate finding of sion, although there was no motion fact and conclusion of law, will be for a new trial, if proper exceptions considered on appeal, even though had been taken to the conclusions of there has been no motion and law, they would nevertheless have grounds for a new trial. In the case been considered by this court on ap- of Prudential Ins. Co. v. Orr, 174 peal.

Ky. 831, 192 S. W. 825, a jury trial In none of the cases cited by the was waived in an ordinary action, appellee on this question of practice and there was neither a separation was there a separation of the law of the law and facts, nor a motion and facts, except in the case of for a new trial. The court in that Henderson v. Du Pree, 82 Ky. 678. case quoted § 332 of the Civil Code, In that case there was by the court, and said: “The appellant made no on its own motion, a separation of request of the circuit court for the law and facts placed in the judg- separate findings of law and facts, and, consequently, no exception was plated by either, and which, relating or could have been taken to the deci- back to the original transaction, desion of the trial court upon the stroys the original consideration, or, questions of law involved in the as it is sometimes said, brings about trial. Furthermore, there was no a total failure of consideration. motion or grounds for a new trial. It was not the bare promise of Under this state of the record appel- appellee to marry decedent that inlee insists that this court can only duced the execution of the note; it determine whether the pleadings was the benefits he expected to realsupport the judgment.

It ize in the future when that promise follows, therefore, that, appellant was carried out. The contract on having failed to except to the trial its face was executory in its nature; court's finding of law, it cannot now the benefits to be derived by the obcomplain that the court incorrectly ligor in the note as its consideration decided the law of the case.

were all to be performed by appelUnmistakably the court meant lee in the future, and before the that if there had been an exception time came for their performance, to the trial court's conclusions of and by the intervening death of Willaw, this court would have reviewed son, not superinduced by any act of it, even though there was no motion his, the carrying out of her promise for a new trial. A review of these -the real consideration—was made authorities convinces us that, under impossible of performance. the provisions of § 332 of the Civil In the case of Streshley v. Powell, Code, where there has been a sep- 12 B. Mon. 178, Streshley sold to aration of the law and facts, and a Powell a negro boy for the sum of party properly excepts to the con- $700, payable in sixty days; the boy clusions of law found by the court, was to be immediately delivered to a motion for a new trial is unneces- the purchaser, but before the delivsary to authorize a review of an ery a note for that amount was error of law.

signed by Powell, and a bill of sale As we interpret the court's con- executed by Streshley. The negro clusions of law, its judgment was boy was not present, but Streshley primarily based upon the view that promised to immediately deliver the promise of the plaintiff to marry him to Powell. The boy, however, Wilson was at the time, and yet is, was never delivered, but had evia sufficiently valuable consideration dently run off. to support the note and uphold the The court, in response to the arjudgment. That a promise of a gument that it was the sale and the woman to marry a man is at the execution of the bill of sale that time a valuable consideration is not furnished the consideration for the to be denied; but the question raised execution of the note, said: “Does here goes far deeper than that. Al- not this demonstrate that it was not though the promise at the time is a the sale simply, nor the execution of valuable consideration, yet, where the bill of sale for the absent negro, the contract between the parties nor both combined, that moved the is from its very nature an executory appellee to sign the note? Was not one, and contemplates future per- the motive which induced him to do formance as the consideration, and so the contemplated immediate debefore the time comes for that con- livery of the negro? Certainly no sideration to pass, and before it has other conclusion can be drawn from passed, unforeseen things happen the facts proved in the cause. And which are not brought about by Tomlin, in his Law Dictionary, page either of the parties involved, and 393, defines a consideration for a it thereby becomes impossible for contract to be the 'material cause of the contract to be performed by the contract, without which it will either party, then there has

not be effectual or binding;' he says about a state of things not contem- futher, that, 'as to contracts, a con

Breach of prom

months.

(200 Ky. 609, 255 8. W. 267.) sideration may be defined to be the ties appears to have been that Wilreason which moved a contracting son would pay to her, at a time in party to enter into the contract.' the future, $5,000, in consideration Did not the appellee in this case ex- of which she at some time in the pect an immediate delivery into his future, not fixed, would become his possession of the negro boy, and did wiie. In other words, in a reasonnot this anticipated delivery move able time in the future they were him to sign the note? Was not this to be married and their whole agreeanticipated delivery of the boy the ment consummated. substance, the essence, of the con- But before the expiration of that tract on his part? Surely it was. reasonable time, without fault upon And his delivery not having been the part of either, realized, there has been, in our opin

his death made it ise-defaultion, a substantial failure of the con- impossible for the lapse of two sideration of said note."

contract to be carIn this case, as in that, it was the ried out. It was from its nature culmination of the things desired by such a contract as no one could carWilson that induced him to sign the ry out for him after his death, and, note, and not the mere promise of his death having occurred at a time appellee that she would marry him. when there was no default upon his He looked forward to the happiness part, the direct question is presenther society would bring him, and to ed whether there was a total failure the comforts of a home over which

of consideration. she would preside, and to the rear- In 3 R. C. L. title, “Bills and ing and training of his children. Notes," $ 132, p. 936, it is said: These were the things that were in

“While services to be rendered in his mind, and were the things that the future can furnish no considerainduced him to execute the note. tion for the giving of a note, and if Manifestly a contract between two the payee relies simply upon a conpeople to marry at some time in the tract for future services as furnishfuture contemplates the continued ing the consideration for the note, , existence of both such people, and he must show a valid, binding conwith that contemplation in view, if tract, yet the payee of such a note by any intervening cause for which may show that the note was given neither is responsible, the consum- in consideration of future services mation of their desires becomes im- to be rendered, and that such servpossible because of the death of ices, were rendered, thus furnishing

either, then any ob- the consideration. In the intermeBills and notes, ligation entered in

diate time the obligation of the connas considera- to by either in con- tract or promise is suspended; for, tion-effect of death.

sideration of that until the performance of the condi

agreement is wholly tion of the promisee, there is no without consideration.

consideration, and the promise is A general agreement to marry,

nudum pactum; but on the perwith no time fixed, is an agreement formance of the condition by the to marry within a reasonable time; promisee it is clothed with a valid and as there is nothing in the plead consideration, which relates back to ings alleging any default upon the the promise, and then becomes obligpart of Wilson in carrying out his atory.promise, and as the note was exe- In Story on Contracts, 5th ed. $ cuted only about two months before 605, p. 558, it is said: "Where the the death of Wilson, it is apparent consideration of a contract totally that the expiration of a reasonable fails,—that is, when that which was time had not come at the time of his supposed to be a consideration turns death. 2 Schouler, Marr. & Div. out to be none,—the contract, as far p. 1521.

as the immediate parties are conThe agreement between the par- cerned, may be avoided, and the same rule applies as if there never contract-as follows: “(1) Where had been any consideration.” the impossibility is created by law;

In a note to the case of Daniels (2) where the continued existence v. Englehart, 39 L.R.A.(N.S.) 938, of something essential to the perfailure of consideration is defined to formance is an implied condition be: "Failure of consideration, total of the contract, and such thing has or partial, occurs when a considera- ceased to exist; (3) where contracts tion, good and sufficient at the time are made for personal services the agreement was made, by some which cannot be performed by the breach of contract, mistake, or acci- assignee or a personal representadent, afterwards fails."

tive, and the person who has agreed In Parsons on Notes & Bills, vol. to perform has died, or is prevented 1, p. 203, it is said: “The entire from performing by sickness, imfailure of consideration, after a note prisonment, and the like." See alis given, is as complete a defense so 6 R. C. L. p. 1009. as an original absence of all con- It is apparent this case comes sideration."

both within the second and third Likewise, Story on Promissory classifications. Certainly the conNotes, 7th ed. $ 187, says: "The tract in question was made in conobjection to a note may be that templation of the continued existthere is a total want of considera- ence of the life of Wilson, and it is, tion to support it, or that there is on its face, such a contract as could only a partial want of consideration. not be performed by his assignee or In the first case, it goes to the en- personal representative. tire validity of the note, and avoids Without further elaboration, we it. In the latter case, it affects the are impelled to the conclusion that note with nullity only pro tanto. as Wilson died at a time before the The same rule applies to cases where contract was to be performed, and there was originally no want of con- his death made its performance sideration, but there has been a sub- wholly impossible, and its performsequent failure thereof, either in ance being the sole consideration for whole or in part. For a subsequent the execution of the note, there was failure of the consideration is equal- a total failure of consideration, and ly fatal with an original want of the judgment should have been for consideration—not, indeed, in all the defendant. cases, but in many cases."

The judgment is reversed, with Page on Contracts, 2d ed. vol. 5, directions to grant appellant a new p. 4713, classifies subsequent im- trial, and for further proceedings possibilities—that is, such impossi- consistent herewith. bilities as occur after the original Whole court sitting.

ANNOTATION.

Death of obligor as affecting executory obligation in consideration of promise

to marry obligor.

An extended search has disclosed the defendant's decedent did not renno case in point other than the re- der impossible the performance of ported case (WILSON v. NOLEN, ante, the obligation of the note itself, which 80). The decision against the right was the subject of the action, it did of the payee to recover on a note given render impossible of performance the by decedent in consideration of a contract to marry which was the conpromise to marry seems to be the re- sideration for the note. The principle sult of a blend of the principle as to of impossibility of performance, therefailure of consideration and the prin- fore, seems to be applicable, not diciple as to intervening impossibility rectly and independently as a defense of performance. While the death of to an action on the note, but indirectly

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