13 Ohio St. 84 | Ohio | 1861
The petition in this case seeks to recover a specific amount,, as a debt becoming due on the tender of the stock. It states that the stock was tendered, payment of the sum which, by the contract, was to be given for the stock demanded, and that the defendant refused to accept the stock and to pay the amount so demanded, and a judgment is therefore asked for that amount and interest.
Regarded as an action of debt — as an action to recovera cer tain sum — it is questionable whetherit could be maintained — . the contract being very clearly executory, and no title to the stock having passed, in fact neither the company nor its stock being in existence at the time of the contract, and no assent of the defendant at any time thereafter to become a stockholder being shown.
The rule in England appears to be, that on an executory contract for the sale of property, where an agreed price is to be paid on the transfer of a title to the property, the remedy for a refusal to complete the contract by acceptance and payment, is an action for the damages sustained thereby. Laird v. Pim, 7 Mees. & Welsh. 474, 478. The principle appears to be, that a party can not retain the title to the property and also recover the price, and to pass the title the assent of the other party is requisite. This assent may, in a proper case, be enforced in a court of equity; but in .amere action on the contract to recover the price, that can not be done. There are American cases which hold that in such cases, after a tender, an action to recover the price, may be maintained. Alna v.
If the instrument sued on in this case showed simply an agreement on the part of the defendant to accept and pay for stock in a turnpike company, thereafter to come into existence, and which could not he a party to the instrument, or be bound to furnish the stock, there could certainly he no contract binding on the defendant for the want of mutuality. A written stipulation to take stock in a turnpike company which is not in existence, can not be enforced by the contemplated turnpike company when it comes into existence, because it would be under no obligation to do the act which is the consideration for the promise of the other party, to furnish the stock. But it is said that the objection of a want of mutuality “ must be confined to those cases where the want of mutuality would leave one party without a valid or avail
“ In contracts, where the promise of the one party is the consideration for the promise of the other, the promises must be concurrent and obligatory upon both at the same time.” Nichols v. Raynbred, Hobart, 88b; Tucker v. Woods, 12 Johns. 190, 192; Reep v. Goodrich, 12 Johns. 397; 1 Ohitty on Pl. 325; Story on Cont., sec. 448; Addison on Cont. 34. But where the consideration is not the promise, but the doing of some act, which being done would constitute a valid consideration, then assent to the contract may be shown by doing
We think it doubtful, whether a fair construction of the instrument under consideration shows a request to locate the road across the farm of the defendant. The contingency that it might be so located, was contemplated, and in the event that it should be, then, the defendant bound himself to build the road or pay for the building, at the engineer’s estimate, and take the amount in stock. But there was not, nor could there have been, any promise then made by the plaintiff to permit the building of the road or to deliver the stock. The case would then fall within the principle of Cooke v. Oxley, 3 T. R. 653, in which there was a proposal to sell goods to the plaintiff, and an agreement to give him a certain time to determine if he would take them. He determined to take them within the time and gave notice thereof, requested a delivery of the goods and offered to pay the price, but it was held, that he not being bound by the original contract, there was no consideration to bind the other party. This principle was acted on in Burnell v. Johnson, 4 Johns. 235. In the case of Branch Bank at Huntsville v. Steele, 10 Ala. 915, there was an agreement by the bank to receive state bonds at a future day in discharge of a debt, but the debtor was not also bound to deliver the bonds, and the contract was held to be not binding on the bank for want of mutuality, and therefore di not discharge an indorser who relied upon it as a defense.
We have been asked by the counsel for the plaintiff, if we found there was no mutuality in the contract, still, to look at the conduct of the defendant — his purpose in the execution of the instrument. But we do not see how we can look at the conduct of the defendant with any other view, than to ascertain whether he has entered into a contract, in such a case as this, it is not our province to decide as to the propriety of the conduct of the party. We have only to inquire whether he has incurred a legal obligation, and being of opinion for the reasons which have been stated, that he has not, the judgment of the court of common pleas will be affirmed.
Judgment affirmed.