21 Wend. 139 | N.Y. Sup. Ct. | 1839
By the Court,
The difficulty in sustaining this action is, that no consideration appears for the undertaking of the defendant. The written instrument is but a simple proposition, and no averment that it was acceded to by.the plaintiffs. The fact that they Afterwards located the road agreeably to the terms of the proposition is, of itself, nothing ; it should have, appeared that they had agreed with the defendant, thus to locate it as a consideration for the promise. The promise of each must be concurrent and obligatory at the same time to render either binding, and should be so stated in the declaration. 1 Caines, 585. 4 Johns. R. 235. 7 id. 87. 3 T. R. 653 & 148. 9 Wend. 336.
This case is not unlike Burnett v. Biscoe, 4 Johns. R. 235, and Cooke v. Oxley, 3 T. R. 653. In .the first the defendant made an agreement with the plaintiff on the 20th February, by which she agreed to give him the' refusal of her farm for two years, from the 1st April following, on certain terms specified. The plaintiff averred that .on the 1st April he performed the agreement, &c. On demurrer, the court say, there was no'consideration stated—that though the defendant agreed to give the refusal of the farm, the plaintiff did not agree toi take it—that there was no promise on his part for the promise of the defendant, nor any money paid, or other valuable consideration given. The other case is, if possible, still stronger. There the defendant agreed to give the plaintiff .till four o’clock, P. M. to agree to the proposal, and the declaration averred that he did agree and gave notice before the hour—still the judgment was arrested. At the time of entering into the contract the engagement was
The pleader in the cause before us, assumes that the instrument was obligatory on both parties on the 4th August,' when it was executed by the defendant, and upon the strength of the legal liability arising thereupon' alleges, as usual, mutual promises, by the parties to fulfil and perform the aforesaid agreement. Where this legal liability arises from the contract as set forth, it is sufficient to'state it without alleging formally that the defendant ‘promised. 1 Chitty’s Pl. 299, 2 N. R 62. And it is equally clear, if none appears, the super se assumpsit will not help the count. Without the legal liability, the promise fails.. :
The radical vice in the pleading is, that the agreement, and the undertaking and promise of the plaintiffs to perform it, which they set forth as the sole consideration for the promise of the defendant, amounts to nothing, as the agreement is not ■ binding, upon them—it is an agreement only upon one side.
The other objections I am inclined to think untenable. The appraisal referred to, was to be made agreeably to the act of incorporation in such cases provided.
Judgment for defendant