Wright v. Rand

FARR, J.

There is some dispute here with reference to the period for which a mortgage of $5,000 was to run and as to whether or not Mary E. Rand had consented to a three year period, and in this behalf it is contended that there was endorsed upon her copy of the contract the paragraph above set out. However, it is not shown that this fact was ever communicated to the plaintiffs or that such endorsement was made upon the contract held by them, it having been their desire that the mortgage for $5,000, together with the note secured thereby, should run for a period of three years, and this being the situation as to the proof, it follows. that this alteration in the terms of the original contract so changed its terms and conditions as to render it null and void.

To establish this principle does not require the citation of authorities because it is a rule well recognized in practically every jurisdiction, as announced in Elliott on Contracts, .Sections 3841 and 3843; 1 Parson on Contracts, 491, and the numerous cases cited as sustaining the text.

It is not shown that the endorsement on the copy of the contract held by Mrs. Rand with reference to a change in the terms of their original contract was ever communicated to the plaintiffs herein. There is, therefore, no valid contract between them. Consequently, specific performance can not be decreed for the reason that the contract was never completed; that is, there was no mutuality between the parties, and it follows that the plaintiffs are entitled to recover the sum paid upon the original contract, which is $500.00. Judgment accordingly.

(Pollock and Roberts, JJ., concur.)