Trask v. Vinson , 37 Mass. 105 ( 1838 )

Morton J.

delivered the opinion of the Court. The payment of the promissory notes in suit is resisted, on the ground that they were made without consideration.

The plaintiff holding by several assignments a contract for the conveyance of certain real estate in Maine, transferred the same to the defendant, and in satisfaction received three prom issory notes, two of which are the subject of this suit. The defendant’s counsel contend that the original contract was not valid, and therefore is not a sufficient consideration to support an express promise. This contract is in the form of a bond, and doubtless when written was intended to be sealed. But no seal having been affixed, it is merely a simple contract in writing. As such it is binding upon the parties. It was signed by William Smith, and the condition is, “ that he shall on demand, at any time within ninety days, grant, sell and convey, by a good and sufficient warranty deed, with the usual covenants, a certain tract of land therein described.”

W. Smith having no title to the land, it was insisted that be could not convey it, and therefore the contract itself was invalid and formed no legal consideration for the notes. It was executory and contained no stipulation that the contractor was then seised of the estate. We know of no rule of law or principle of sound policy, which prohibit a person from agreeing or covenanting to convey an estate not'his own. He might have authority from the owner to sell, or he might have the refusal of the estate, or he might rely upon his ability to purchase it in season to execute his contract. If he fairly performs the terms of the stipulation, it matters nothing to the purchaser that the title was acquired after the contract. If he fails to execute it, the remedy upon the covenants or stipulations will afford an adequate indemnity.

The defendant’s counsel argues, that if the contractor fails to convey according to the terms of his agreement, this will be a failure of the consideration of the notes. In support of the argument he relies upon the cases of Dickinson v. Hall, 14 Pick. 217, and Rice v. Goddard, 14 Pick. 293. There it was holden, that where the consideration of a note was the conveyance of property, real or personal, and the title failed, so that nothing passed by the conveyance, the note was nudum pactum. Those cases were well considered, and are founded on sound principles and supported by an irresistible current of authorities. With the exception of a few obiter dicta in our own reports, and the case of Lloyd v. Jewell, in Maine, 1 Greenl. 352, scarcely a dictum to the contrary can be found, while there is a remarkable coincidence in all the other American and English decisions upon the subject.

But those cases are unlike the present. There the real consideration, the moving cause of the promise to pay, was the estate actually conveyed ; here it is an agreement to convey, at a future time, and upon the happening of a future event. That was an executed, this an executory contract.

The rule of damages too would be different in the two cases. There the rule of damages would be the exact amount of the consideration paid ; here it would be the value of the estate at the time it was to be conveyed. There, if the promisor was holden to pay his note, he might recover for the breach of the covenant of seisin precisely the same sum. Here the damages recoverable on the stipulation or covenant might be more or less than the amount paid or received. We can therefore perceive no objection to the validity of the contract, and no reason to doubt the correctness of the instruction that it formed a legal consideration for the notes.

Whether the contractor would be nound to disclose his want of title or whether the omission to do so would be such a suppressio veri as would render the contract voidable, are questions wmch we are not now required to decide. The contract was in fact executed, and so it was immaterial whether it might have been avoided or not. The jury have found that the estate was conveyed in pursuance of and conformably to the terms of the agreement.

The plaintiff agreed to pay a certain sum for the conveyance of a certain estate. He gave his undertaking to pay the price and took in return a contract to make the conveyance. The estate has accordingly been conveyed. He has accepted the title. He holds the estate, and there can be no reason why he should not be holden to pay the stipulated price.

The case of Seaman v. Price, 2 Bingh. 437, in principle resembles, but is stronger than the present. The plaintiff made a parol contract to purchase a house ; which of course was not legally binding. He for a consideration which the defendant promised to pay, assigned the contract to him. The house, by the plaintiff’s request, was conveyed to a person named by the defendant. The defendant resisted the payment of the promised consideration, on the ground that the original contract to convey was void by the statute of frauds, and so the transfer of it to the defendant could form no legal consideration for the promise. But the court overruled the objection ; and Best C. J. said : “ Beyond all question the defendant has had the opportunity of becoming the purchaser, the premises having been conveyed to his nominee ; and though there was no legal obligation to convey, yet the defendant has, in fact, enjoyed all the advantages of this agreement, and that forms a moral obligation sufficient to support the promise.”

The ground upon which the above decision has been made, renders Peirce’s testimony immaterial, and shows that he had no such interest in the trial as ought to have excluded him.

Judgment on the verdict.