Yates v. Martin ( 1849 )

Wi-nxoisr, J.

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 charge Mm if the contract declared upon is of such a nature as to entitle Yates to recover.

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 plaintiff contends that tbe written agreement or contract would, if it had been executed by the defendant according to the parol agreement, have been a mere offer on his part to sell the property on the terms mentioned in the agreement, which offer the plamtiff might or might not have accepted, and could not have the effect to convey any interest in land within the meaning of the statute. The question before the court arises upon the consideration of the nature of this agreement, for, if in case it had been executed, it would have conveyed any legal or equitable interest in the real estate mentioned in it to the plaintiff; the agreement declared upon, which is an agreement to make the written agreement, is an agreement for the sale of an interest in land, and therefore within the statute. I am of the opinion that the written agreement would have conveyed to the plamtiff an equitable interest in the real estate mentioned in it, if it had been executed according to the parol contract set out in the declaration, and would have been valid for any purpose. Sug. Vend. 126, 138; 4 Mass. 488; 5 id. 133; 6 id. 460; 11 id. 342.

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 himself been bound to pay the stipulated price of the land, and the latter would have had an interest in the land as completely vested in him as though he was thus bound.

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.