Goodpaster v. Porter

"Wright, J. While it appears that the parties submit-; ted the cause to the court, there is nothing to show that defendants, or either of them, ever answered; or that there' were any pleadings in the cause subsequent to the demurrer of Porter, of the 14th of March, 1859. We infer from what is contained in the motion for a new trial, that' an issue of-fact was made up and that testimony was introduced. But what this issue was, or what testimony was introduced, we have no means of knowing. Much that is said, therefore,, in the argument of counsel for appellant, finds no support in the record and we need not therefore further refer to it.- We are left then to examine the case upon the sufficiency of the petition, (treating the written agreement as part of it,) taken as true, as far as well pleaded, to entitle the- plaintiff to recover. And here appellant makes several points which may be noticed briefly in their order. It is said that this contract was not binding for want of mutuality. A contract includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise. Hence consent or acceptance is indispensible to the validity of every • contract; for as A cannot, by the mere act of his mind,, transfer to Bj a right in property without a concurrent intention on his part to accept it, neither can A by. his promise confer a right against himself until B has, by his acceptance of it, concurred in the intention of acquiring such right.,. But if A promises B to pay him a sum of money if he will do a particular act, and B does the act, the promise thereupon becomes binding, although B at the time of the promise does not engage to do the act. “In the intermediate time,”, s,ays Wilde, J., in Train v. Gold, 5 Pick, 380, “ the obligation of the contract or promise is suspended; for until the, performance of the conditions of the promise there is no.. [164] consideration, and the promise is nudum pactum; but on the performance of the condition by the promisee, it is clothed with a valid consideration which relates bade to the promise, and it then becomes obligatory.” While there can be no contract without the consent of all the parties to it, it is not necessai’y that their wills should concur at the same instant’ Moore v. Pierson, et al, 6 Iowa 279; and see Attix Noyes & Co. v. Pelan & Anderson, 5 Ib. 336. In the case before us there is an express undertaking on the part of defendants to pay $2800 for the land at a fixed time, if plaintiff should then elect to sell it. He avers that he did elect to sell, tendered the deed and demanded the contract price. Plaintiff then performed the condition. Defendants’ promise had not been revoked. By the acceptance of the contract and the election to sell, the promise of defendants was clothed with a good consideration, which, in the language of the books, related back to the promise and become obligatory. See Cheney v. Smith, 3 Humph. 19; Mactier v. Frith, 6 Wend. 103. Any point made as to the want of consideration is answered by the two cases of Linder v. Lake, 6 Iowa 167, and Towsley v. Olds, Ib. 526, where it is held that the objection that no consideration is shown upon the face of the i nstrument, or that none is averred by plaintiff in his petition, cannot be taken by demurrer. The want or failure of consideration must be averred and shown by way of defense; the action being upon a written contract. It is further urged that plaintiff seeks to reform a contract, and have it specifically performed; and that this can not be done at law. If the premises were correct, the conclusion would be undeniable. We understand the petition to declare simply for the price and value of certain real estate sold by plaintiff to defendants, such price being fixed by the terms of the contract. That a promisee or obligee may sue at law, to recover such price, we suppose there is no doubt. The fact that he has added to his petition an averment that the agreement mis-describeu the land can make [165] -no difference. He asks no relief consequent upon the averment, and for all practical purposes it had as well not be there, or being there, may be rejected as surplusage. That there was a mistake was patent to the comprehension of any person, arid that plaintiff made the averment, unnecessarily, in his petition, without asking a reformation of the contract, can not have the effect of so vitiating it in the particular .complained of, as to defeat his action. When the plaintiff elected to sell, he had a right to insist that defendants should take the land and to claim, as the measure of his damages, the agreed or contract price. And in this view it could make no difference what was the value of the land at the time of such election. He was not left to take as his damages the difference between the actual value of the land at. that time and the price agreed to be paid. The contract being valid, his rights were the same as under any other contract of sale, where there is an agreement to .convey on one side and to pay for the land on the .other. Judgment affirmed.