Kirskey v. Kirskey


–          Plaintiff, wife of defendant’s brother…he died…

–          Brother said that if she came down to see him, he would give her a place to reside, which is nicer than what she has now.

–          Advised to sell land, and come down to stay with him.

  • He has enough land for her to live on, and he wants his nephews to have a better place to live.
  • Shortly after, she moved to D’s place…Lived on his land for two years…
  • After two years, the D, made her go to a not-so-comfortable place in the woods, and eventually made her leave.
  • Lower court awarded her, $200 for the inconvienence of having to leave the place, overruled in Supreme Court.

Procedural History

–          Supreme Court of Alabama (state court, 1845).

–          Lower courts upheld judgment of $200 in favor of plaintiff.

  • On appeal, they stated that the facts were agreed upon, and if “they will sustain action” the judgment will be affirmed, otherwise it should be reversed.
  • Supreme Court overruled lower court’s decision, and reversed the judgment.


–          Was this a gift, or did it have the grounds for consideration which would be enforceable by law?

–          Did the above facts, “sustain an action?”


–          No, the facts did not sustain an action. The lower courts erred in their decision and it was reversed by the supreme court of Alabama.



–          There was no “bargain” in this situation…there was nothing bargained for…It was more of a gratuity than an act of consideration…


–          The loss and in-convenience that the plaintiff sustained for breaking up and moving to brother in-laws house, was not sufficient of an act, or bargain by the plaintiff…

–          It was considered a gift, vs. a consideration contract.

–          Lacked a sufficient promise, or performance from the wife.

–          It wasn’t a sufficient detriment on the family.

–          “IF” you come down and see me….She had a choice, she really didn’t give anything up, or a performance, or fulfill a promise….


Supreme Court reversed the decision.


–          Dissenting opinion of Ormond

  • First inclination was that the “act of breaking up an moving 60 miles” was a sufficient action or performance for there to be a warranted consideration.
  • Brothers, didn’t believe this to be true, and ultimately persuaded Ormond to change the decision.
  • She had other options, she didn’t need to leave…he was essentially offering her a place to stay if she wanted to leave her place…She didn’t give up anything, in the sense of the word.
  • ???Peppercorn???

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