Linscott v. McIntire

[203] The case was continued for advisement, and the opinion of the Court afterwards drawn up by Weston C. J. The consideration-for the promise, upon which the plaintiff relies, was the sale by him of a certain interest in real estate to the defendant. If this contract of sale had been an ex-ecutory agreement, there being no note or memorandum in writing, signed by the party to be charged, it would have been void by the statute of frauds, and would therefore have constituted no legal consideration for the defendant’s promise. But the consideration was executed. The plaintiff having a legal and effectual right to the reconveyance by his grantee of certain laud, put the defendant by substitution in his place, and thereupon the grantee of the plaintiff, by his appointment, conveyed the land to the defendant, in pursuance of a written agreement between the plaintiff and his grantee. This was a valuable interest available to the plaintiff, which thus actually passed to the defendant, and constituted a legal consideration for his promise. If he had agreed to pay therefor a gross sum, there could be no doubt that such a promise could be enforced at law. And the promise might be contingent or qualified, at the pleasure of the parties. In this case what the defendant was to pay for the interest, which the plaintiff had caused to be conveyed to him, depended upon the amount, which the former might realize, upon a sale of the premises. That being done, the amount to be paid became a matter of calculation, which has been settled by the jury. The sale of land, if executed, is as valid a consideration for the promise, as the payment of money. Dillingham v. Runnels, 4 Mass. R. 400. In the case of Bunnel v. Taintor, 4 Conn. R. 568, the parties had entered into a parol agreement, by virtue of which they were to be jointly interested in the purchase and sale of real estate, and the profits were to be equally divided between them, whereupon certain estates having been bought and sold at a profit, the plaintiff sustained an action for his moiety ; and it was held not to be a case within the statute of frauds. The case of Hess v. Fox, 10 Wend. 436, is not distinguishable in principle from the one before us. The defendant’s testator was,, mortgagee of certain real estate, which had been conveyed to him by deed, conditioned to be void upon the payment of a certain [204] bond. The plaintiff subsequently executed an absolute deed, and surrendered the premises, upon a parol agreement by the defendant’s testator, to pay to the plaintiff the excess, which he might realize upon a sale of the land, beyond the amount of his debt. Upon a sale by the defendant, his executor, under lawful authority, for a greater sum, the plaintiff sustained an action for the excess ; and .tire Court held the statute of frauds np legal objection. It is insisted, that the agreement was not to be performed within the space of one year, and not being in writing, was void under another clause of the same statute. The sale did not happen to be made until a year had expired ; but it might have taken place at an earlier period, and there is nothing in the case from which it appears, that in the contemplation of the parties at the time, it was to be delayed beyond a year. This clause of the statute has been limited to cases, where by the express terms of the agreement, the contract was not to be performed within the space pf a year. And it has been held to be no objection, that it depended on a contingency, which might not and did not happen, until after that time. Fenton v. Emblers, 3 Burr. 1278; Anon. 1 Salk. 280. There was in the agreement all the mutuality, the defendant thought proper to require. He stipulated to pay for the land, which he purchased of the plaintiff, the amount due from him to Grover, his grantee, and such further sum as it might sell for, beyond what was necessary for his indemnity, assuming himself the hazard, if any there was, that it might not possibly sell for as much, as would be wanted for this purpose. But as it was known to be more valuable than the sum for which it was pledged, this was a contingency, hardly within the contemplation of the parties. Judgment on the verdict.