Goward v. Waters

Wells, J.

The bargain and conveyance of the farm by the defendant and his wife was a sale, within the meaning of the contract in suit. The condition of the title cannot affect the *598 right of the plaintiffs nor the liability of the defendant. Hia contract is merely personal, and is absolute in its terms. By the terms of the last clause of the agreement, Waters was bound to pay the plaintiffs three per cent, upon the price for which the farm was sold, which would amount to a hundred and thirty-five dollars. The only defence to a recovery of that sum is, that there appears to be no consideration for the promise.

The position of the defendant’s counsel is undoubtedly true, that at the time the contract was signed it was a mere nudum pactum. The plaintiffs paid nothing, incurred no expense or loss, and entered into no obligation on their part. They were at liberty to act or not, as they pleased ; and would incur no liability by failing to do anything. But it is.also apparent that the writing contemplated services to be rendered and expenses to be incurred by the plaintiffs for the defendant; and that the promises were made in view of such future services and expenses. The writing is merely a stipulation, by the defendant, of the terms upon which compensation shall be made by him. Subsequent performance of services and expenditure of money, in prosecution of the employment thus authorized, furnish a sufficient consideration for the promises of the defendant. Train v. Gold, 5 Pick. 380 . Gardner v. Webber, 17 Pick. 407 . The case finds such a consideration in fact.

After the plaintiffs had entered upon this employment the defendant could not sell without making the stipulated compensation. If they failed to purchase or find a purchaser within a reasonable time after being called upon to fulfil, he might terminate the agreement. But this had not been done. The plaintiffs are therefore entitled to the price agreed for upon the event of a sale by the defendant himself.

The principal difficulty in the case arises from the mention of a consideration in the writing itself. Can a different consideration be shown to support the contract, without violating the rules of evidence relating to contracts in writing? It might, indeed, be questioned whether the term “ in consideration ” was not used to define the conditions upon which the first branch of the agreement should take effect, rather than to set forth its con *599 sideration in a legal sense. But whether it be the one or the other, the term has no application to the last branch of the agreement. It is obvious that this last clause could never be supported by it as a consideration. The very contingency upon which this clause was to become operative involves a defeat of that which is denominated the consideration in the first clause. Under the recital of the agreement, no legal consideration could be furnished, in accordance with its express terms, except by procuring a purchaser for the property. But there is a clear implication of another consideration; to wit, the services in that behalf to be rendered by the plaintiffs. The last clause is intended solely to fix the compensation for such services, in case a sale by the defendant should deprive them of the opportunity to secure compensation under the provisions of the first clause. Considerations are often found by implication merely. Tingley v. Cutler, 7 Conn. 291 . Cummings v. Dennett, 26 Maine, 397.

Proof of the facts which make out such a consideration does not contradict, add to, nor vary the written contract; but tends to support it according to its legitimate and proper interpretation. The allowance of such proof seems to accord with the decisions in Wallis v. Wallis, 4 Mass. 135 ; Gale v. Coburn, 18 Pick. 397 ; Brewer v. Hardy, 22 Pick. 376 ; Bullard v. Briggs, 7 Pick. 533 ; Hinders Lessee v. Longworth, 11 Wheat. 199 ; Powell v. Monson Brumfield Manufacturing Co. 3 Mason, 347, 359 ; McCrea v. Purmort, 16 Wend. 471 ; Belden v. Seymour, 8 Conn. 304 ; Morse v. Shattuck, 4 N. H. 229; 2 Phil. Ev. (4th Am. ed.) 655.

The parties having expressly stipulated for the payment of three per cent, as the compensation, in the event which has occurred, there can be no recovery upon the quantum meruit. But, the court being satisfied that a consideration is shown for the express stipulation, consistently with th 't terms of the written instrument, the plaintiffs are entitled tc judgment for one hundred and thirty-five dollars and interest