BLOH PENNOH, Appellant, v. WILLIAM PENNOH, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 21, 1959. Decided January 14, 1960. 1. A person may be sued by any name which identifies or describes that person. 2. Misnomer cannot be pleaded as a defense after a general appearance or plea to the merits. 3. Either a benefit to the promisor or a detriment to the promisee may constitute consideration for a contract. 4. A promise to give real property may be specifically enforced by a court of equity where the donee, in reliance on the promise, has taken possession of the property and constructed valuable and permanent improvements. On appeal from a judgment decreeing specific performance of a contract to convey land, judgment affirmed. T. Gyibli Collins for appellant. 0. Natty B. Davis for appellee. MR. JUSTICE PIERRE delivered the opinion of the Court. Specific performance is an equitable remedy for the enforcement of a contract, written or oral; it n-lay compel a contracting party to do an act, or to omit to do one, depending upon the enforceability of the undertaking. To decree it, equity requires certain fundamental requisites in respect to the contract and its enforcement, that is to say : I. The contract must be founded upon valuable consideration. 2. The contract must be practicable in its mutual enforcement. 3. Its enforcement must not be contrary to good conscience; it must be of necessary importance to the plaintiff, and at the same time not oppressive to the defendant. LIBERIAN LAW REPORTS 481 In many cases where the breach of a contract has occasioned litigation, damages have been found to be an adequate remedy; in such instances, equity will not intervene by decreeing specific performance. But there are cases where, because of the peculiarity of the circumstances, neither damages nor any other remedy at law would suffice ; and it is in such cases that specific performance has been invoked to compel the parties to honor their promises and agreements. The history of this case as culled from the records certified to us might be briefly stated as follows. Bloh Pennoh, the appellant, is an elderly female relative of the appellee–she is alleged to be his aunt–and owns a parcel of land upon which she and some of her relatives reside. The complaint alleges that, because of the relationship existing between herself and the appellee, and also because of the fact that she has no children of her own to inherit her property upon her death, she invited and persuaded appellee to build his house on a portion of her property, and promised that, because of their relationship, she would agree to make him a gift of the land, should he build and complete his house, in the same manner as another of her male relatives had been given the land upon which he had built his house. The appellee is alleged to have requested more formal and regular arrangement, that of leasing the premises from her. But she insisted that, being without her own children, she would agree to sell him the property for a nominal sum, but only on the condition that he continue the construction of his house and complete it; and under no circumstances would she lease him the land. It is alleged that, thereupon, and after much insistence from her, construction of the building was commenced; and although repeated efforts were made to secure a deed, the appellant maintained the original condition of her promise–to execute the deed only on completion of the building. Eventually the building was completed at a total cost 482 LIBERIAN LAW REPORTS of $12,000, and appellee leased it to his first tenant, the late Mrs. Samuel B. Cooper, who occupied it without question or molestation from appellant. It was when appellee affected his second lease of the premises–this time a Lebanese merchant–that the appellant began molesting the tenant, contending that the building had been constructed on her property without reference to her. She instituted proceedings in summary ejectment to evict the tenant; and it was at this stage that appellee filed his bill for specific performance of the alleged oral agreement reached between himself and the appellant, upon the terms of which said agreement he had built and completed his house. The appellant, then defendant, filed a formal appearance to defend the case; and because this appearance assumed such importance at the hearing, we have thought it necessary to quote it as follows : “WILLIAM H. KENNEDY, ESQUIRE, CLERK SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY “SIR, “You will please take due and legal notice and spread upon the records of the above named court this appearance of the above-named defendant herewith filed this 17th day of July, 1957, and you will also take due and legal notice that the said defendant will be represented in person and by counsel to defend the above entitled case before said court. “BLOH PENNOH, defendant, by and through her counsel, [Sgd.] T. GYIBLI COLLINS” In the answer she filed, the defendant raised three points upon which she relied for her defense : I. That she had not been sued in her proper name, since she is not a Pennoh, and had never been known as Bloh Pennoh. 2. That the complaint failed to allege any facts which LIBERIAN LAW REPORTS 483 could entitle the plaintiff to the relief sought, because there was no showing of mutuality of promise and consent, or of certainty of offer and acceptance, or that the alleged parol agreement was founded upon any adequate, just or valuable consideration. 3. That she denied having made the alleged parol agreement to issue a deed in favor of the plaintiff for the land on which the building was constructed ; on the contrary, she contended that it was the plaintiff who was trying to defraud her out of her property by sharp practice to carry out his wicked intentions. The pleadings progressed as far as the defendant’s rejoinder, and were rested without having raised any other issues than those which we have hereinabove referred to as found in the complaint and answer. In considering the first of these three issues–misnomer –it is interesting to state that, not only did more than one witness testify at the trial, to the effect that Bloh Pennoh is the name commonly used by acquaintances in identifying the appellant, and that she had, up to the filing of the case, acknowledged and responded to this name; but she herself had filed her formal appearance in this name, as can be seen from the said appearance quoted earlier in this opinion, thereby admitting its sufficiency of identification of her. We find ourselves in agreement with the Judge’s ruling on this point; so we will therefore quote the relevant por tion of his ruling on the law issues, which is as follows : “This court does not hesitate to sustain Count `I’ of the reply and overrule Count 1′ of the answer as to the issue of misnomer. . . . Our opinion is that defendant has been properly described, and sufficiently too, in the body of plaintiff’s complaint. . . .” He relied upon the position taken by this Supreme Court in Kruger v. Johns, [1913] LRSC 2; 2 L.L.R. 89 (1913), wherein Syllabus “3” says : 484 LIBERIAN LAW REPORTS “In civil causes, if a sufficient description is given, the misnomer is immaterial.” The Judge also relied upon the following quotation : “It is proper, however, to sue a person by the name by which he is generally known, or which he has assumed.” 39 AM. JUR. 855 Parties � 6. In addition to the authorities which the learned Judge used to fortify his position, we will add the following quotation from Bouvier : “In contracts, a mistake in the name will not avoid the contract, in general, if the party can be ascertained.” BOUVIER, LAW DICTIONARY 2225 Misnomer (Rawle’s 3rd rev. 1914). It would seem to us that, if the defendant had intended to rely upon misnomer as ground to dismiss the complaint, she should have appeared specially and in the proper name in which she insists she should have been summoned ; but to appear as “Bloh Pennoh,” and then contend that she was not such a person is, in our opinion, just a little bit inconsistent. Not only does her appearance show her to be the proper defendant, but her answer pleads to the merits of the complaint in that name ; and in the said answer she has not denied that the controversy relates to an alleged contract between herself and the plaintiff. Thus she is no stranger to the proceedings in specific performance, brought by the plaintiff. Coming now to the question of whether the complaint alleges facts sufficient to entitle the plaintiff to the relief sought, recourse to the record shows that plaintiff has complained of defendant’s refusal to perform her side of an alleged parol agreement made between them. The complaint also alleges that, although it was on the agreed understanding that, upon his performance of an act stated, she would on her part do a certain thing; and that although he has, in keeping with the mutual understanding, performed all that was required of him, she has refused to keep and perform her side of the agreement, contrary to LIBERIAN LAW REPORTS 485 the mutual agreement reached between them. He further complains that the defendant’s refusal to perform her side of the agreement is detrimental to his interest, in that he has spent a large sum of money to construct a house on defendant’s land in the hope that either he would have been allowed to buy the land for a nominal sum of money, or that the defendant, in keeping with their mutual understanding and her promise, would have given him a deed of gift for the premises upon completion of the building. He contends that the performance of his side of the mutual understanding being of financial disadvantage to him, and of benefit to the defendant, there is suitable and adequate consideration, and therefore the contract is enforceable, and its enforcement should be decreed in specific performance. “A long series of decisions has established the rule that a benefit to the promisor or a detriment to the promisee is sufficient consideration for a contract. Stated with greater elaboration, sufficient consideration may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss of responsibility given, suffered or undertaken by the other. Any benefit conferred or agreed to be conferred upon the promisor by any other person to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a sufficient consideration for the promise. “Consideration is clearly sufficient where there is a benefit to the promisor as well as a detriment to the promisee. The delivery of property by the promisee to the promisor furnishes a good illustration of this rule. There may be a benefit and a detriment without an absolute transfer of the title to such property.” 12 AM. JUR. 571-72 Contracts � 79. Joseph Williamson, an attorney called in by the appel- 486 LIBERIAN LAW REPORTS lee to draw up a lease agreement between the parties for the land in question, testified at the trial; and we think it is of importance to the fair determination of this case that Nve quote a portion of his testimony: “Some time during the course of 1956, the exact date not known to me, Mr. Pennoh approached me to draw up a lease agreement between him and Bloh Pennoh, for a tract of land that he had commenced some improvement on. Pennoh and I went over to Bloh Pennoh for a conference on the terms of the agreement. She said to me, after outlining Pennoh’s desire to lease the place, that William Pennoh was the son of her late brother, and that she, not having any children of her own, could not lease or sell any of her property to her brother’s children, but that she had already told Pennoh that she would give him the land in fee simple, and so she would stand by her promise to him and issue him the deed when she saw that he was really making worthwhile improvement.” This testimony of Attorney Williamson bears out the allegations of the appellee as contained in his complaint, and also supports his testimony at the trial. Another witness, Gertrude Greaves, testified, in part, as follows : “In the year 1957, I cannot remember the date and the month, I came from Ganta. I went to the Defendant’s house that morning, looking for my brother William Pennoh. When I got there, I rapped at the door. The defendant asked : ‘Who is that?’ I told her : ‘It is I.’ She asked me if I went to look for plaintiff. I said : ‘Yes.’ The defendant said that plaintiff was outdoors. When I got there, he was laying the foundation of this very building. Then I said : ‘What you doing here?’ He told me that defendant had given him the place to build his house, and that he was building on it. I then went into the house of the defendant to thank her for what she had done for my brother the LIBERIAN LAW REPORTS 487 plaintiff. The defendant told me that she had decided to divide the property between the three boys. The one which plaintiff is building for him ; where she was living for Harry Pennoh ; and the front for Claudius Pennoh. I asked her how about us, the girls. She said that the boys would bury her, and since she had no children she would give them the property.” Yet another witness, Lawrence Philips testified, in part, as follows : “Last year Bloh Pennoh gave her place to the family so that whosoever wished to build a house might do so. She authorized Claudius Pennoh to build ; she also authorized the plaintiff to build. One day I was made to understand by Alfred Ross that Bloh wanted to sue William Pennoh. Ross told me that it was not good for the family to fight for property among themselves. Hence I approached Bloh Pennoh not to take any legal steps. She agreed. She said, in the presence of Joseph Dennis, that she did not want to make palaver, because she had given the place to William (plaintiff) ; but she had heard, and people had told her, that William had received a certain amount of money from some Syrian people; and William Pennoh, the plaintiff, did not give her anything out of his money.” Counsellor Joseph Dennis, of counsel for the Lebanese merchant to whom the appellee had leased the house upon its completion, and against whom the appellant had instituted summary ejectment proceedings, testified, in part, as follows : “I called at her home, and was in company with one Lawrence Phillips, Mrs. Maude Taylor and others. I told the defendant that, because of the relationship between her and William Pennoh, there should not be any case in court. She expressed to me that she had no children, and that, because of the relationship between her and the children of Gabriel Pennoh, she had told William Pennoh that, since she had no children 488 LIBERIAN LAW REPORTS of her own, she regarded them as her children, and that she had divided the property that she had in Monrovia among them, designating a portion thereof to William Pennoh and the other portions to the other children. During the discussion she expressed that she had agreed to give William Pennoh the parcel of land on which he erected a building; but what motivated her to file the ejectment suit against Kemil Wahab, the occupant of the building erected by William Pennoh, was the fact that William Pennoh had received an amount of $900 as rental for the same building, and had failed to give her a portion thereof, which she felt was not fair, since she had decided and promised to give him that parcel of land.” From the testimony of the several witnesses set down herein, in addition to the averments of the complaint in specific performance, it seems just a little more than coincidental that so many persons would have knowledge of some understanding between the parties respecting the construction of the house by appellee on appellant’s land. The appellant has denied any knowledge of an understanding between herself and the appellee; nor does she admit ever having given her consent for appellee to build his house on her land. She cannot recall ever having promised to execute any deed to the appellant upon completion of the house. It is therefore peculiar, taking what the appellant has said to be true, that anyone would stand by and observe the construction of a concrete building commence on his property and continue for a length of time sufficient to bring it to recognizable shape; that he would watch construction material being brought in and utilized to enlarge the edifice under construction ; that he would see it near completion, and eventually completed and occupied by a tenant not of his choosing; and although all of these happenings took place in public view, and therefore must have been with the owner’s knowledge, yet no effort is shown ever to have been made to question LIBERIAN LAW REPORTS 489 either the right of the constructors to build, or their authority to intrude unwarrantedly upon private property. And yet such a party expects a fair and unbiased mind to believe his denial of any knowledge of the construction of the building, and believe that there has not been some understanding between himself and the builder as to the terms upon which the building was allowed to be constructed upon his land. From the testimony of witnesses in the court below we have no doubt as to the existence of some understanding between the parties. Such an understanding must have been the basis of the appellee’s willingness to construct a building of such value on appellant’s land without a title in fee or an agreement to hold for years. It is well settled that a contract is an agreement, entered into by the assent of two or more minds, by which one party undertakes to give some valuable thing, or to do, or or omit some act, in consideration that the other party shall give, or has given, some valuable thing, or shall do or omit, or has done or omitted some act. The consideration of a contract may be anything which is troublesome or prejudicial in any degree to the party who performs or suffers it, or beneficial in any degree to the other party; an agreement without such a consideration is not a contract but only a promise. “Any oral gift of land, or promise to give land, followed by the vendee’s taking possession of the land in pursuance of the promise and making valuable and permanent improvements in reliance thereon, may be enforced by a court of equity against the donor or his heirs or grantees with notice. If the promise to give is conditioned on the vendee’s making improvements, a compliance with the condition furnishes a consideration for the transaction. But it is not necessary that there be a technical consideration. If the promise to give was wholly unconditional, the same relief will be given to the donee, based upon the same reasons of 490 LIBERIAN LAW REPORTS estoppel against the donor and virtual fraud upon the donee because of his change of condition as in the case of a parol sale with possession and improvements. The making of the improvements is both an act of part performance and the equivalent, in the view of equity, of an actual consideration.” 36 CYC. 681 Specific Performance. Being in complete harmony with this view, we will quote another authority: it . . . equity will lend its aid to the enforcement of a promise to make a gift of land where the donee in reliance on the gift has taken possession pursuant thereto and erected valuable and permanent improvements . . . . Even a parol gift of land may be rendered enforceable in equity by the donee’s acts in taking possession and erecting improvements, on the theory that such acts constitute a part performance sufficient to take the case out of the statute of frauds.” 49 AM. JUR. 28 Specific Performance � r8. We do not think it is necessary to belabor this well established legal principle any further. And being of the abiding conviction that some promise to give or actual gift of the land was made by appellant to appellee, and that, in response to this promise or gift, the building was constructed, we think it only equitably right that appellant be required to perform her side of the contract. It is our opinion that the trial Judge committed no error in decreeing the enforcement of the contract; we cannot see any reason therefore to disturb his said decree. We have therefore affirmed it with costs against the appellant. flfjtrmed.