Vantassel v. Hathaway , 53 Me. 18 ( 1864 )

Appleton, C. J.

This is an action of assumpsit founded on the following memorandum.

"Bangor, Sept. 2, 1858. — This is to certify, that I will let T. J. Yantassel have the house he built and formerly occupied, any .time, by his paying me within one hundred dollars what it cost me. " J. Hathaway.”

It is obvious, that here is no mutuality. The plaintiff was under no obligation to take the house and pay for the same. The defendant, if ever so desirous of having the amount specified, could not enforce its collection. Nor does the case show that there was any consideration whatever for the alleged promise. Being without consideration, it could not be enforced. The case of Bean v. Burbank, 16 Maine, 458, is similar in all respects, and is directly in point against the maintenance of the action. To the same effect is that of Burnet v. Bisco, 4 Johns., 235.

The counsel for the plaintiff’ rely on Atwood v. Cobb, 16 Pick., 227. But, in that case, the contract was signed by both parties, and the plaintiff offered to show that he agreed to take the land in question. There was mutuality of contract as well as consideration. Both these elements are wanting in the case at bar. Nonsuit confirmed.

Cutting, Kent, Walton, Barrows and Danforth, JJ., concurred.