Corbitt & Macleay v. Salem Gaslight Co.

By the Court, Prim, O. J.: "We are of the opinion that the demurrer to the complaint should have been sustained on the ground that it does not state facts sufficient to constitute a cause of action. This action is based upon a written agreement which is set out in full in the complaint. It is unilateral in its character, and is only signed by one of the parties. It is a mere proposition of one party, in writing, to purchase a certain quantity of coal from the other at a certain price mentioned, without any corresponding obligation upon the other to sell said coal at said price. But it is suggested that it is averred in the complaint that respondents agreed to sell and deliver said coal at the price and time mentioned in said contract. This is true, but it will be noticed that the said agreement referred to in said averment, is the same agreement which is set out in full in the complaint. That averment amounts to nothing more than if the plaintiff, after having set out the written agreement, had said in his averment that the plaintiffs thereby agreed to sell and deliver said coal at the price and time mentioned, to said defendants. A promise made by one party is a good consideration for a promise made by the other party, but the promise must be concurrent and obligatory on both parties at the same time. A promise made by one party, as in this case, without a corresponding obligation or promise by the other, is void. (12 Barb. 502; 12 John. 396.) But it is further claimed by appellant, that the alleged agreement set out in the complaint is within the statute of frauds, because there is no consideration expressed in it, as moving from the respondents to appellant to support the promises made by said appellant. The alleged agreement is one for the sale of personal property at a price not less than fifty dollars, and there is no consideration expressed in the said writing, nor can any be inferred from anything that is expressed therein. Our statute of frauds provides that an agreement for the sale of personal property at a price not less than fifty dollars is [408] void, unless the same, or some note or memorandum thereof expressing the consideration be in writing, and subscribed by the party to be charged. (Civil Code, 264, sec. 775.) Thus it will be seen that our statute expressly provides that the consideration must be expressed in writing, or the agreement is void. Many of the New York decisions hold that the consideration must be expressed in writing under a statute which does not provide that the consideration must be expressed. (3 John. 239; 4.John. 335.) Respondent having averred in his complaint that the alleged agreement was in writing, and having set it out in full, it cannot be presumed that it was in writing, as in the case of Taylor v. Patterson & Co. It follows, from the views herein expressed, that the judgment must be reversed and remanded to the court below for further proceedings. Judgment reversed.