Brief Fact Summary.
Plaintiff sued Defendant for money owed. The trial court granted Defendant’s motion to dismiss. Plaintiff appealed.
Synopsis of Rule of Law.
A promise lacking consideration is not made actionable by an assumption to carry out such promise where the assumption is also lacking consideration.
Alice Cardoza’s (Defendant) deceased husband allegedly told Defendant before he died to leave $10,000 to his sister, Rose Haase (Plaintiff), and $3000 to Loretta Haase (Loretta). Defendant did not tell the Haases about this directive initially, but eventually admitted to Plaintiff that her husband had given the instruction. At that point, Defendant offered, and Plaintiff accepted, $50 a month. These payments lasted for eight months, at which point Plaintiff asked Defendant for a note on the remaining balance of the alleged money owed. Plaintiff had not made any changes in reliance on Defendant’s informing her of Mr. Defendant’s directive, or of Defendant’s monthly payment offer. Plaintiff sued to recover the balance. Loretta’s claim was assigned to Plaintiff for purposes of the lawsuit. Defendant filed a motion to dismiss, which the trial court granted. Plaintiff appealed.
Whether a promise lacking consideration is made actionable by an assumption to carry out such promise where the assumption is also lacking consideration.
No. the trial court’s ruling is affirmed. A promise lacking consideration is not made actionable by an assumption to carry out such promise where the assumption is also lacking consideration.
In determining whether the granting of a nonsuit was proper, the appellate court must resolve every conflict in the evidence in favor of the plaintiff, consider every inference which can reasonably be drawn and every presumption which can fairly be deemed to arise in support of the plaintiff, and accept as true all evidence adduced, direct and indirect, which tends to sustain the case of the plaintiff.View Full Point of Law
An informal promise lacking consideration is not enforceable. Moreover, a promise lacking consideration is not made actionable by an assumption to carry out such promise where the assumption is also lacking consideration. In the case at bar, no consideration existed for the original instructions to pay the $10,000 and $3000. Defendant’s promise to assume the alleged obligation her husband had does not create an enforceable promise. There must be some form of consideration at some point and in this case there is not. Moreover, Plaintiff did not change her position in reliance on the promise, thus promissory estoppel is not available to her.