Burrell v. Root

Geoveb, J.

The seal was prima facie evidence of a sufficient consideration for the defendant’s contract. (2 R. S., 407, § 77). At common law it would have, been conclusive. (2 Kent’s Com., 404 and notes.) There was no attempt by the defendant to show a want of consideration. The sufficiency of the consideration was therefore established. It is insisted by the counsel for the appellant, that the contract not having been signed by the plaintiff, is made void by the statute. (2 R. S., 135, § 8.) That section provides that every contract for the sale of lands or any interest therein, shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the sale is to be made. If this is to be regarded as a contract by the plantiff for the sale of the lands by him to the defendant, it would come directly within provisions of this section and therefore be void, had the lands been in this State, But the lands are not in this State, but in Iowa. Our statute of frauds is not, therefore, applicable to the case, but the statutes of Iowa must govern as to its validity. There was no suggestion that the statutes of Iowa differed in this respect from those of the State of Hew York; and as the case appears to have been disposed of in the court below upon the supposition that they were the same, it is proper that the same assumption should be made in this court. The question, therefore, is whether this is a contract by the plaintiff binding him to sell the land to the defendant; most clearly it is not. Had the contract been signed by the plaintiff, it would have given no right to the defendant to require the plaintiff to give a conveyance of the land to him upon performance upon his part. It would have been entirely at the option of the plaintiff to convey or not. The contract was not designed to give the defendant any rights as a purchaser that he could enforce against the plaintiff, but to oblige the defendant to take the lands and pay therefor to the plaintiff the specified price, in case he, at the time provided, chose to sell to him. It is manifest that this is not a contract by the plaintiff for the sale of the land. He, under the contract, if valid, has bound the defendant to purchase at a specified price and time, in case at that time he shall elect to sell. The plaintiff not being bound, it follows that there is no reciprocal obligation on Ms part to constitute a consideration for the promise of the defendant to purchase and pay the plaintiff therefor. Cases will be found in which contracts of this description were held void for want of consideration but no such question arises in the present case, for, as w have seen, a sufficient consideration is proved by the seal of the defendant affixed to the contract. The obligation of the plaintiff would not have been in any degree affected by his signing the contract. The defendant would thereby have acquired no right whatever. The inquiry is, in this case, whether the plaintiff can enforce the obligation assumed by the defendant, not having himself signed the contract. In Eno v. Woodworth (4 Comstock, 249), it was held that a similar contract, when signed by both parties, could be enforced. This ease determines that where the consideration is sufficient, want of mutuality is no obstacle in the way of a recovery. Giles v. Bradley (2 Johns. Cases, 253), was decided upon the same principle. Want of mutuality is no objection to a recovery by the plaintiff in this case. We have seen that the signing of the contract by the plaintiff would not, in any respect, have affected the rights of the parties, if the contract is valid in its absence. Wiry is it not valid ? It is not a contract for the sale of the land or any interest therein, but an obligation assumed by the defendant for a sufficient consideration to purchase in future at a specified price, in case the plaintiff shall elect to sell. The signature of the plaintiff to such a paper would be but an idle ceremony. Section eight applies only to contracts where some obligation is assumed by the owner and not at all to contracts like the present. The Utica, &c. R. R. Co. v. Brinkerhoof (21 Wendell, 133), cited by the counsel for the appellant, does not apply to the present case. That was decided in favor of the defendant upon the ground that there was no consideration for the defendant’s undertaking. Townshend and ors., v. Hubbard (4 Hill, 351), was a case showing that it was the intention of the parties to make a contract mutually binding. The court held that it was not executed in a manner to bind the plaintiffs, and for this reason held that the defendant, although he had properly executed, was not hound. The same remarks apply to the case of Mc Whorter and al. v. McMahon (10 Paige, 386); besides the point in question did not necessarily arise in that case. The order appealed from must be affirmed and judgment final ordered- against the defendant.