1 Chand. 118 | Wis. | 1849
Lead Opinion
The declaration in this case contains a number of special counts, alleging the same cause of action in different forms, to which there is a general demurrer. The contract declared upon is a parol agreement, and is substantially as follows : “ That MaHin, on the 11th day of December, 1846, at Milwaukee, in consideration that Yates, at the special request of Martin, would then and there agree to pay him the sum of ten dollars, undertook and promised Yates to sign his name to a certain agreement in wilting, which Yates, at the special request of Martin, had drawn and written, and that he would then and there deliver the agreement in wilting so signed as aforesaid to Yates, which agreement hi wilting is as follows : 1 For and in consideration of ten dollars to me in hand paid, I hereby agree to accept of $5,000 above cost, of all the real estate owned by me in Milwaukee, and the furniture in my house, one-half down and the other half in one year, secured by mortgage on the premises ; this offer to stand open for twenty-four hours. Friday, 7 p. m., Dec. 11, 1846.’ ”
The declaration alleges that Martin refused to sign the written agreement, and contains the necessary averments to
The district court of Milwaukee county sustained a demurrer to the declaration, and judgment was thereupon rendered against Yates, who brings the case here to reverse the judgment. Several objections were taken to the declaration by the counsel for ihe defendant on the argument; one is, that the parol agreement sued upon is void, for the reason that the written one would have been utterly worthless and void for uncertainty and for want of mutuality if it had been executed ; another is, that admitting the written agreement would have been of any force or effect, it would have conveyed an interest in land, and that consequently the parol agreement to execute it is within the statute of frauds, and'therefore void. It is clear, that if the written agreement would have been worthless for all purposes, the parol agreement,to make it is not of such a nature as will support an action, but tMs case can be disposed of without inquiry into this objection. I shall therefore confine myself to the consideration of the effect of the statute of frauds upon the contract.
Our statute differs somewhat from the .English one, and the 8th section of title 1st, wMch is principally relied on by the defendant in error, is as follows :
“ Every contract for the leasing fora longer period than one year, or for the sale of any lands, or interest in lands shall be void unless the contract or some,note or memorandum thereof, expressing the consideration be in writing and be subscribed by the party by whom the lease or sale is to be made.”
The defendant contends that the parol, contract declared upon is a contract for the sale of an interest in land witMn the meaning of the statute, if it has any validity, because the written one would, if it had been executed by the defendant, have conveyed to the plaintiff the right or power to purchase the real estate described in it. On the other hand, the plain
I can see no difference, so far as the question before the court is concerned, between this written agreement and a bond conditioned that if the plamtiff would pay a certain sum of money by a certain time, the defendant would convey the legal title to the real estate in question, for it can make no difference whether the obligation is to convey the title to or an interest in land merely, as parol contracts for the sale of-either are equally within the statute.
It cannot be doubted, I think, that such a bond would have conveyed to the plamtiff an interest in land, as it would have given him the power to compel the defendant to convey the land. It is equally clear that the plamtiff would have had the same power if the defendant had executed the written contract; that the plaintiff might not have chosen to ’avail himself of it is true, but the obligation to convey would have been as binding on the defendant, as though the plaintiff had
It can make no difference that the obligation of the contract was all to be on the part of the defendant; his interest in the subject-matter of the contract would be affected as much as though both parties were equally bound. Such being the nature of the agreement which the defendant agreed to execute (if it would had had any force or validity at all), there can be no doubt as to the nature of the agreement to make it. It must be considered a parol agreement to sell an interest in land, and consequently within the statute. I have considered the written agreement as though it might have been enforced had the defendant executed it. It was contended in the argument for the defendant, that it would have been entirely void for the reason that it was vagué, uncertain and without mutuality, and that the parol agreement sued on was consequently void also. I have not thought it necessary to consider that part of the case, and, of course, no opinion upon it is given.
The judgment of the district court-is affirmed, with costs.
Dissenting Opinion
dissenting. There is but one question in this case: Whether the contract shed upon is within the statute of frauds ?
Yates sues Martin for damages for the breach of a verbal agreement. The general demurrer admits the agreement as set forth in the declaration. That agreement was, that Martin, in case Yates would pay him ten-dollars, would sign and deliver to him a written instrument of which the following is a copy : ■ •
“ For and in consideration of ten dollars to me in hand paid, I hereby agree to accept $5,000, above cost, of all the real estate owned by me in Milwaukee,-and the furniture in my house, one-half' down and the other half in one year, secured*178 by mortgage on tbe premises. This offer to stand open for twenty-four hours. Friday evening, 7 p. m., December 11, 1846.”
Tbe sole point is, whether • this instrument, had it been executed and delivered, would have given Yates “any interest” in Martin's “lands?” The statute of frauds of this state declares every contract for the sale of any interest in lands void, unless it is in writing ; and the better opinion seems to be, that a contract for a contract is within the statute, provided the second contract conveys any interest in land. And this interest is admitted to be the same, whether it is present or future, legal or equitable, direct or contingent.
If, therefore, the writing to which Yates became entitled under his verbal agreement, conferred per se any such interest, the verbal agreement was void, and this action cannot be sustained. If, on. the contrary, that writing by itself, as it would pass from the hands of Martin to Yates, conveyed pro-prio vigore no such interest, then this action is well brought.
What then would that writing convey ? It was a written offer by Martin to sell his real and personal estate for a fixed price. It was no better and no worse for having been purchased by ten dollars paid by Yates, except that such payment would enable Yates to enforce it, should he elect to do it, and should Martin refuse. But was it an instrument which any holder could enforce as it stood ? Certainly not. Without a tender of money or a written acceptance on the part of the holder, Martin would not be bound to fulfill it. It gave no present claim on Martin's land, because something must be done by the holder to entitle him to enforce it. It gave no future claim, because there was no future event then certain to happen which would make it available. As it came from Martin, pursuant to the verbal agreement, it was as unavailable in equity as at law. It conveyed no interest, present or future, equitable or legal, positive or contingent. It was a naked offer to sell at a fixed price. Yates might or
To determine this case there is no occasion to go back to the books or to the courts. It all depends upon the paper writing which was the object of the verbal agreement. We all can see what that would have been good for. Any well informed business man can tell what could be done with it, as well as the most learned judge. If Martin could not sue on it or enfoxce it; if Yates had the right to accept it or let it alone; if no possible future event could make it available to either party unless Yates exercised a volition upon it and did some act to make it binding, then it is as certain as any mathematical proposition that, as it came from Martin, as it agreed for in the verbal contract, as it should have been delivered to Yates, it conveyed no interest in land, present or future, equitable or legal, direct or contingent.
These are my views of the case ; and I think the judgment of the court below ought to be reversed ; but my brethren differ from me, and the judgment must remain.