Tucker v. Woods , 12 Johns. 190 ( 1815 )

Per Curiam.

It might well be questioned, whether the memorandum, which is set up as the contract between these parties, and upon which this action is founded, is not void for want of consideration. It would seem to be a mere proposition, on the part of the defendant, and without mutuality. Nothing was to be done by the plaintiff; it was optional with him whether he would comply or not, on his part, and the.deféndant derived no benefit or advantage whatever from the proposition. The case of Cooke v. Oxley, (3 Term Rep. 653.) is very much in point to show the contract void. In contracts, where the promise of tibió . „ , , , one party is the consideration for the promise of the other, the promises must be concurrent and obligatory upon both At the same time. (1 Chitty, 297. 1 Caines, 594.) But the ground upon which the judge, at the trial, put the cause, is perfectly conclusive. For, admitting there was a consideration, and that the plaintiff was bound on his part, yet it appearing by the evidence, that he was not in a situation to perform, the contract might be rescinded by the other side. (2 Com. Con. 52. 58, 59.) The proof in the case shows conclusively, that the property to be conveyed by the plaintiff to the defendant was under lease, and that the term would not expire until long after the bargain between these parties was to have been consummated % and this bringsjj within the principle decided by this court, in the case of Jackson v. Wass, (11 Johns. 525.) The motion for a new trial must, therefore, be denied.