Lester v. Jewett — 12 Barb. 502

Majority

p. 502

Lester vs. Jewett.

Headnote

The plaintiff declared upon the following instrument, executed by the defendant, alone: “ Por value received I agree, at the expiration of one year from this date, to purchase thirty shares of'the capital stock of the Southern Life Insurance and Trust Company, of R. L., [the plaintiff,] for the sum of $3000. Dated September 6, 1889. ” Held, that the agreement on the part of the defendant, to purchase, was void for want of mutuality; there being no corresponding obligation on the plaintiff, to sell.

Held, also, that no action could be maintained upon the instrument, by the plaintiff, without averring a tender of performance by him.

Demurrer to declaration. The first count of the declaration alledgéd that the defendant, on the 6th of September, 1839, made his certain instrument in writing, of that date, subscribed bj him, and then and there delivered to the plaintiff, by which the defendant, for value received, agreed, at the expiration of. one year from the date of the instrument, to purchase of the plaintiff for the sum of $8000, thirty shares of the capital stock of the Southern Life Insurance and Trust Company. The plaintiff then alledged that the time for performance had elapsed; a readiness by him to sell and transfer the stock; and a refusal by the defendant to purchase the same. The second count alledged that on the 6th of September, 1839, the plaintiff being the owner and holder of thirty shares of the capital stock of the Southern Life Insurance and Trust Company, the defendant, in consideration of the premises, and of a valuable consideration then and there received of the plaintiff, made and subscribed an instrument in writing, in the following words : “ For value received I agree, at the expiration of one year from this date, to purchase thirty shares of the capital stock of the Southern Life Insurance and Trust Company, of Ralph Lester, of the city of Rochester, for the sum of three thousand dollars. Dated September 6, 1839.” The plaintiff then averred a readiness and willingness to sell and transfer the stock, and a neglect and refusal by the defendant to purchase the same. The other counts of the declaration were similar in .form. The third averred a general readiness on the part of the plaintiff to perform, and that at the expiration of one year from the date of the instru

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ment in writing, to wit, on the 7th of September, 1840, he offered to sell and transfer the stock to the defendant for the sum aforesaid : and a refusal by the defendant.

The defendant demurred to the declaration generally, and assigned the following causes of demurrer to each count. 1. That the plaintiff - did not state in said count any consideration for the promise of the defendant set forth therein. 2. That the plaintiff did not state in said count what constituted the consideration for the promise set forth in said count. 3. That the plaintiff did not state in said count that at the time of making the said promise on the part of the defendant, he, the said plaintiff, was the owner of the stock mentioned in said count. 4. That it was not stated in said count, that the plaintiff, at the time of making the said promise on the part of the defendant, promised or agreed to sell the said stock to the defendant on the terms mentioned in said contract. 5. That it was not stated in said count that the plaintiff, at the expiration of one year from the date of the instrument in writing, mentioned in said count, tendered to the defendant, or offered to sell or transfer to him, the said thirty shares of stock in the said count mentioned. 6. That it was not stated in said count, that the plaintiff at any time before the commencement of this suit, tendered to the defendant, or offered to sell or transfer to him, the said thirty shares of stock in the said count mentioned.

aS'. Matthews, for the plaintiff.

I. A sufficient consideration for the agreement set forth in the declaration is stated. The words for value received, import a sufficient consideration. II. The plaintiff was not bound to tender the stock to the defendant. It is sufficient to aver in the declaration that he was ready and willing to assign. It was the duty of the defendant to seek the plaintiff and perform. III. It was not necessary to aver that the plaintiff was owner of the stock at the time of the contract, if it was necessary that he should in fact be the owner. That will be presumed, until the contrary appears. The foregoing points apply more particularly to the first count. The second count avers that the plaintiff was owner of the stock at the time

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of the contract. The third count avers a tender of the stock after the expiration -of the year. The fourth and fifth counts are like the first and second, except only in the statement of the date of the instrument declared on.

B. Jewett, defendant in, person.

The counts, except the third, are bad, because there is no averment that the plaintiff tendered, or offered to transfer the stock to the defendant. (Dakin v. Williams, 11 Wend. 90 . Johnson v. Reed, 9 Mass. R. 81 . Payne v. Lansing, 2 Wend. 525 . Pordage v. Cole, 1 Sound. 319, and notes. Bank of Columbia v. Hagner, 1 Peters, 464, 465. Dana v. King, 2 Pick 156 . 1 Chitty’s Pl. 312, Springf, ed. 1844, Tompkins v. Elliot, 5 Wend. 498 .) II. The third count is also defective. Because, (1.) The consideration of the defendant’s promise is not set forth. (1 Chitty’s Pl. 293. 6 Cowen, 151. 1 Hall, 201 . 1 Com. Dig. 334. Action on the case upon assumpsit, H. 3. Wickliff v. Hill, 4 Bibb, 269 .) (2.) It is not shown that the plaintiff tendered an assignment of the stock to the defendant. (3.) The offer to transfer was not made in season. The year expired on the 5th or 6th .of September, as the day of making the contract is counted or excluded. (4 Vesey, 689, n. (b.) Lloyd v. Collett, 1 Peters, 464, 465. Strange, 458,533, 577, 579, 1 R. S. 710, § 6.) (4.) The count does not alledge that the plaintiff held the certificate of stock, or was “ entitled in his own right,” or “ authorized by some person so entitled ” to sell, &c. (1 R. & 710, § 6.) These objections equally apply to all- the other counts. III. The counts are all bad, because they do not alledge that any promise was made to the plaintiff. (1 Chitty’s Pl. 300, 301.) It by no means follows -from the delivery of the writing to him, that the promise was to him. Candler v. Rossiter, 10 Wend. 487 .) The 2d, 3d and 5th counts contain the allegation that the consideration was received from the plaintiff. • - This fact, if proved, might be sufficient to sustain an allegation, that the promise was made to the plaintiff, but does not excuse its omission. Besides, if that ground is relied on, the specific consideration should be set out. It is not sufficient to say, that

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“ for a valuable consideration received of the plaintiff,” the defendant promised, without showing what the consideration was. An assignment was necessary and should have been tendered.

By the Court,

I think this undertaking as set out in the declaration, signed by the defendant only, is void for want of mutuality. The agreement on the part of the defendant to purchase, rests on the corresponding obligation of the plaintiff to sell, and there is no averment that the plaintiff ever agreed to- sell. Where the promise of one party is the consideration of the promise of the other, the promises must be concurrent and obligatory on both parties at the same time. If one party never bound himself to do that which forms the consideration for the promise of the other, so as to give the other a right of action against him in case of his refusal to perform, the contract is void. Both must be bound, or neither will be. (Chit, on Cont. Am. ed. 1842,15. Tucker v. Woods, 12 John. 190 . Keep v. Goodrich, Id. 397. Livingston v. Rogers 1 Caines, 583.) How was the plaintiff bound to sell the stock to the defendant 1 He was no party to the writing, and his parol promise, or the implied promise, from his acceptance of the undertaking of the defendant, was void by the statute of frauds. The language of the statute is that “ every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby.” Several cases were cited by the plaintiff’s counsel, to show that the obligation on the part of the plaintiff to sell, was implied from his acceptance of the defendant’s promise, and it was insisted that this created an obligation on his part. The case of Barton v. McLean, ( 5 Hill, 256 ,) and also Hubbard and others, ex’rs. v. Coolidge, (1 Metcalf, 84,) cited upon the argument, are cases where the contract was signed by both parties, and the word agreed in the covenant or undertaking of one party, was regarded as the word of both parties. In every case I have examined on this point, except Roberts v. Marston, ( 20 Maine Rep. 275 ,) the contract has been signed by

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both parties, and the question arose upon some undertaking in the instrument thus signed, apparently on one side only. If there are any cases which hold that a party is bound who has not agreed in writing subscribed by him, they are certainly in direct conflict with the statute of frauds, and ought not to be upheld. In the case of Roberts v. Marston, the question of mutuality was not raised or noticed. The principal question in that case was whether the receipt and stipulation were in the nature of a condition precedent, so that the other party was obliged to perform by the day, in order to be entitled to the price mentioned in the receipt. The court held it was not; and in passing upon this, they say that the other party, by accepting the receipt, must be deemed to have assented to the stipulation. But they do not undertake to decide that it was valid against him within the statute of frauds.

Another ground of demurrer is that there is no allegation in the declaration, of a tender of the stock, or an offer to perform on the part of the plaintiff. In all the counts except the third, the averment is that the plaintiff was ready and willing to sell and transfer. This objection assumes that the agreement on the part of the plaintiff to sell and transfer was concurrent and mutual with that of the defendant to purchase; as it clearly would have been had the plaintiff been bound at all. It is now well settled that where the covenants or undertakings between the parties are mutual, and both parties are to perform at the same time, the party seeking to recover, must aver and show a performance,' or an offer to perform, on his part. An averment of readiness is not sufficient. (Williams v. Healey, 3 Denio, 363 . Johnson v. Wygant, 11 Wend. 48 . Parker v. Parmale, 20 John. 130 .) In Williams v. Healey, Jewett, justice, in delivering the opinion of the court, says, in regard to mutual conditions in agreements to be performed at the same time, “ it has often been said to be sufficient -for the plaintiff to aver a readiness to perform his part of the contract, and a neglect or refusal of the defendant to perform his part,” and he cites several authorities to that effect, and then says, “It is now settled that a mere readiness to perform, in such case, is not sufficient; but the plaintiff must aver

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a tender of performance on Ms part.” The rule is laid down to the same effect precisely, in Pordage v. Cole, (1 Saund. 320, n. 4, subd. 5,) where two acts are to he done at the same time, and it is uncertain which party is obliged to do the first act. I am satisfied that this has always been the rule, notwithstanding the cases and precedents the other way. In all such cases, the party wishing to place the other in default, must offer to perform himself. It is clear, I think, in this case, that if the plaintiff was bound at all, he was bound to sell at the same time the defendant was bound to purchase, and it is altogether uncertain who was to do the first act. Either party might tender performance and put the other in default if he refused. The cases of Topping v. Root, (5 Cowen, 404,) and Porter v. Rose, ( 12 John. 209 ,) are cases where the seller agreed to deliver articles at a particular place, ajid the action was by the buyer, for not delivering according to the contract. In such cases, perhaps, it would still be sufficient for the buyer to aver that he was at the place of delivery, ready and willing to receive and pay, and that the other party neglected or refused to deliver. The act of delivering at the place might well be said to be the first act, and the other party would be bound to be in readiness to perform at that place, and tender performance only in case of delivery there.

[Monroe General Term,

November 5, 1849.

The third count avers an offer to perform after the expiration of the year. This is clearly bad. The declaration is insufficient on the grounds, 1. That it does not aver a corresponding agreement on the part of the plaintiff to sell; and 2. That it does not aver a tender of performance by the plaintiff.

Judgment for the defendant, with leave to the plaintiff to amend on payment of costs.

Welles, Selden and Johnson, Justices.]

Cases cited

Payne v. Lansing 2 Wend. 525 N.Y. Sup. Ct. p. 504
Candler & Hart v. Rossiter 10 Wend. 487 N.Y. Sup. Ct. p. 504