12 Barb. 502 | N.Y. Sup. Ct. | 1849
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
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
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.]