ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, February 9, 2016

Classic Case Corner: Kirksey v. Kirksey

Classic Case Corner is an occasional series of posts highlighting staples of the Contracts curriculum and resources related to them. Our motto for CCC is, "If it's new to you, then it's new... even if it's old."

Some cases owe their fame in the law school curriculum, in part, to unusual factual details--consider the hairy hand of Hawkins v. McGee as one prominent example. Today's highlight, Kirksey v. Kirksey, 8 Ala. 131 (Ala. 1845), in contrast, became famous despite, or more likely because of, its factual obscurity.

Kirksey Mock PosterIn less than 550 words, Kirksey tells the story of the widowed "Dear Sister Antillico" who was invited by her brother-in-law to abandon her home based on this promise: "If you will come down and see me, I will let you have a place to raise your family, and I have more open land than I can tend; and on the account of your situation, and that of your family, I feel like I want you and the children to do well.”  Two years later, the brother-in-law "notified ['Sister Antillico'] to remove, and put her in a house, not comfortable, in the woods, which he afterwards required her to leave." The Alabama Supreme Court reversed the trial court's verdict for the widow, holding that the brother-in-law's promise was "a mere gratuity, and that an action will not lie for its breach." The brief opinion sheds no great light on the facts beyond the few stated, and it ultimately allows for a great deal of pedagogical flexibility in discussing the doctrine of consideration or the modern availability of promissory estoppel as a substitute.

Professors William Casto (Texas Tech) and Val Ricks (South Texas) filled the information gap and dispelled the much of the surface mystery in their fantastic article, 'Dear Sister Antillico . . .': The Story of Kirksey v. Kirksey, which covers not only the historical background of the case and its litigation, but also the story of how Samuel Williston catapulted a little-known case to its current prominence.

Casto and Ricks' abstract elaborates more on the treasure-trove of facts to be found in the 77-pages of their 2006 Georgetown Law Journal article:

First, its facts raise more questions than they answer. Countless Contracts teachers ask - Why did Isaac Kirksey invite his sister-in-law "Antillico" (an aberrant spelling of Angelico, we discovered) down to Talladega? Was he actually bargaining for something? How many children did Angelico bring? Did Isaac mean for the children to work on his plantation (did he bargain for their labor)? Did Isaac and Angelico have an affair (was the consideration meretricious)? Why did Isaac move to evict his sister-in-law? Was she unbearable as a neighbor? Why did she sue? What result was she seeking? What evidence was presented at trial? Did she have evidence of consideration other than her trip to Talladega? Was her lawyer incompetent? Did the law of the time support Angelico's legal position, or is the opinion's conclusion based on something other than legal authority? Did the appellate court usurp the jury's factfinding role? Why did the dissenting judge write the majority opinion? Whatever happened to Angelico and her small children? These questions serve pedagogy. Our informal poll of contract law teachers revealed a long list of objectives for which professors use Kirksey. Kirksey's ambiguities leave the professor free to take the case where she will.

Second, Kirksey is so ordinary - why is it taught at all? It announces no new doctrine. It explains no doctrine. It's author's style is not impressive, and his reputation is obscure. Today courts might reach the opposite result. Few courts have cited Kirksey, and none since 1949.

We resolve these puzzles. First, we answer all the questions raised by the facts. We were surprised by the answers and suggest that no one who has taught the case has had any idea what actually happened. Second, we explain how Kirksey gained fame. Briefly, Williston changed his mind about the case ("right" to "wrong"), and in the process talked about Kirksey so much that it became embedded in his teaching, his treatise, his mind, and his students' minds - until the case became one of contract law teaching's primary sources. Ironically, Williston's change of mind, the reason for the case's rise to fame (the second puzzle), was made possible by the case's ambiguity (the first).
If you wish, in Paul Harvey's phrase, to know "the rest of the story" about Kirksey, you'll be hard pressed to do better than Casto and Ricks' article.

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I like the idea of Kirksey the movie! Has anyone suggested it to Hollywood?

Posted by: Marian Dent | Feb 10, 2016 4:52:35 AM

I actually teach a Creative Writing for Lawyers seminar in which the students have to write a short story based around the facts of a case they've read. I encouraged them to choose their own case but also gave them some possibilities if they were stuck, and Kirksey v. Kirksey was one of the ones I chose. So few facts, such extravagant potential for dramatic fiction! (A lot of contracts cases made my cut for suggested cases to use for inspiration. One of the students wrote a short story based on Lucy v. Zehmer that was truly fantastic.)

Posted by: Stacey | Feb 12, 2016 11:36:27 AM

Although not in the text book, I teach this case each semester as a hand-out in my introductory business law course for undergraduates. I think it's indispensable. I draw a rough map of Alabama on the chalkboard and put two points showing Huntsville and Talladega and then let the generalized facts do the talking. The students are completely engaged and that's where they really understand the concept of consideration. Nice mock poster!

Posted by: Antillico | Sep 20, 2017 8:00:25 AM

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