Sears v. Brink

| N.Y. Sup. Ct. | May 15, 1808

Van Ness, J. .

delivered the opinion of .the court. The z . iirst count m the declaration which is a special, one, is that on which the plaintiff is to recover, if at all.

The consideration to support the defendants’ promise is averred to be, that Peter Newkirk agreed to assign or give up to the defendants, the contract for the lot of land mentioned in the case. This is a material averment and must be proved, or the plaintiff must fail.

It has been urged, that a promise in writing without a considération is valid, and the case of Pillans & Rose v. Van Mierop & Hopkins, has been relied upon to support that position: But that case has been overruled both here and in England.^† A promisé in writing, without a legal consi¿eration to sustain it, is as much a nudum pactum, as a parol promise. It was never the intention of the legislature to render- that a valid contract when reduced to writing, which would not be so without it.

. It remains then to be seen, whether the plaintiff has given any legal evidence of the consideration stated in the declaration j and this depends upon the true construction of the eleventh - section of the statute for the prevention of frauds.

On the part of the plaintiff it is contended, that the consideration may be proved by parol, though it is admitted that the promise must be in writing.

On the part¡_of the defendants, it is insisted, that the consideration as well as the promise must be in writing, and that parol evidence can in no case be received to prove the consideration. The words of the statute are,. “ That no action shall be brought, &c. to charge, &c. upon any special promise, to answer for the debt of. another, or to charge any person, upon, any agreement made upon consideration of marriage, or upon any contract or sale of lands, &c. or any interest in or concerning them, &c. unless the agreement on which such action shall be brought, or some noté or memorandum thereof shall be in writing, signed by the party to be charged therewith,” ,&c.

I am clearly of opinion, that the consideration as well as the promise must be in writing. The statute provides that the party shall not be charged, unless the agreement upon which the action shall be brought, be in writing. This means the whole agreement, of which the consideration forms an essential and material part.

It is as necessary to the prevention of fraud and perjury, that the consideration which leads to the promise should be in writing, as the promise itself. The word agreement comprehends the consideration as well as the promise. This is the construction which has been given to the statute, in a late case decided in England;^* and it appears to be a sound construction, and one which this court is disposed to adopt.

The contract mentioned in the case, and upon which the l present suit is brought, does not set forth the consideration with sufficient precision and certainty; if the parol evidence be excluded, the consideration is not proved, and. i the plaintiff must, therefore, fail.

The decision of this point renders it unnecessary to give any opinion on the other questions which were made on the argument.

The court are, therefore, of opinion, that according to the provision in the case, there must be a judgment of nonsuit.

Judgment of nonsuit.

† See Ballard v. Walker, decided in January Term, 1802. 7 Term, 350. in the note. Roberts on Frauds, 7.

* Waine v. Warlters, 5 East, 10