Stevens v. Coon

1 Bur. 212 | Wis. | 1843

Dunn, C. J.

Error is brought in this case to reverse a judgment of the district court of Jefferson county.

Coon, plaintiff below, brought his action of assumpsit against Stevens, defendant below, to recover damages on a liability growing out of a contract, which is in the words, etc., following, viz.:

“Astor, March 23, 1839. In consideration of C. J. Coon entering the west half of the north-west quarter of section 35, in town. 13, range 13, I bind myself that the said eighty acres of land shall sell, on or before the 1st October next, for two hundred dollars or more, and the said Coon agrees to give me one-half of the amount over two hundred dollars said land may sell for in consideration of my warranty. HAMILTON STEVENS.”

“I agree to the above contract, C. J. COON.”

At the August term of the said Jefferson county district court, in the year 1840, the said defendant Stevens pleaded the general issue which was joined by the said plaintiff Coon, and after several continuances, the case was tried at the October term, 1842. On the trial, the above contract, and the receiver’s receipt to said plaintiff Coon, for the purchase-money for said tract of land described in said contract, were read in evidence to the jury; and Abraham Vanderpool, a witness, testified “that he had visited that part of the country where the land lies, specified in said writing, and was upon the same, as he has no doubt, and estimated the present value of the same at $1.50 per acre, and that in October. 1839, it might be worth $1.25 an acre.” Upon this evidence and testimony the plaintiff rested his case.

Under the construction put on the contract read in evidence, the jury found for the plaintiff $116.50 in damages, and judgment was entered thereon. There is manifest error in this decision of the court. Prom an inspection of the contract, it is obvious that it is not such an one as is obligatory on either party. There is no reciprocity of benefit, and it binds the defendant below to the performance of a legal impossibility, so palpable to tbe contracting parties, that it could not have been seriously intended by the parties as obligatory on either. The undertaking of the defendant below is, “that plaintiff’s tract of land shall sell for a certain sum by a given day.” Is it not legally impossible for him to perform this undertaking ? Certainly, no man can in legal contemplation, force the sale of another’s property by a given day, or by any day, as of his own act. The plaintiff was well apprised of the deficiency of his contract on the trial, as the testimony of his witness was entirely apart from the contract sued on, and was directed in part to a different contract, and such an one as the law would have recognized. If the contract had been that the tract of land would be worth $200 by a given day, then it could have been recovered on, if it did not rise to that value in the time. 1 Comyn on Contracts, 14, 16, 18; Comyn’s Dig., Title “Agreement;” 1 Pothier on Obligations, 71; 6 Petersdorf’s Abridg. 218; 2 Sand. 137 (d.) The district court should not have entered judgment on the finding of the jury in this case. The construction of the contract by the district court was erroneous.

Judgment reversed with costs.