Corbitt & Macleay v. Salem Gaslight Co.

Void Promise. — A promise made by one party without a corresponding obligation or promise made by the other party is void. Statute oe Frauds — Void Contract. — An agreement for the sale of personal property at a price not less than fifty dollars is void, under our statute of frauds, unless the same or some note or memorandum thereof expressing a consideration be in writing and subscribed by the party to be charged.

Appeal from Multnomah County. Respondents brought this action in the circuit court, for damages accruing by reason of appellants’ failure to take and pay for certain coals, under a contract which is as follows: “Portland, Oregon, December 16, 1875. This,is to certify that the Salem Gaslight Company will purchase from Corbitt & Macleay, on arrival of ship from Sydney, Australia, due during the month of March, 1876, one' hundred and fifty tons New Castle coal, delivered at Salem, at fourteen dollars per ton of two thousand two hundred and forty pounds. Payment, cash on delivery. (Signed) Salem Gaslight Co., per Miles M. Miller, Sec’y.” This contract is set out in the complaint, with an allegation that plaintiffs agreed to sell and' deliver the coals, and with other proper allegations, to entitle them to recover the amount claimed. Appellants demurred because the contract is not in writing, and does not come within section 775 of the Civil Code, and because, if it is in writing, the consideration is not expressed. The demurrer was overruled, an answer filed, and a trial had before the court, which resulted in a judgment for the respondents. This is no agreement in law, for two reasons: 1. There is no mutuality of agreement or of obligation; 2. The alleged contract is within the statute of frauds, and it contains no statement of a consideration moving from the plaintiffs to the defendants to support the defendants’ promise. One promise may be a good consideration for another, but there must be promises by both parties, and they must be mutual. (Tucker v. Wood,' 12 John. 190; Keep & Kale v. Goodrich, Id. 397; Burnt v. M. Bisco, 4 Id. 235; Lester v. Jewett, 12 Barb. 505; 1 Parsons on Cont. 449; 2 Kent, S. P. 465, T. P. 585; 1 Caines, 584; 1 McCord, S. C. 514; 3 Parsons on Cont. 13; 1 Id. 448; 52 N. Y.) In this case there is neither mutuality of agreement or of obligation. The certificate simply says the Gaslight Company will buy the coals, but there is not a word tending to show that the plaintiffs ever agreed or in any manner obligated themselves to sell. Under the statutes of Oregon a contract within the statutes of frauds is void, unless it contains a statement of the consideration. (Code, sec. 775, p. 264; 2 Smith’s Lead. Cas. 310; 3 John. 214.) The memorandum of a contract must contain everything necessary to the validity of the agreement. {Waterman v. Meiggs, 4 Cush. 497; Morton et al. v. Dean, 13 Met. 385. It is not necessary under the statute of frauds that both parties shall sign the writing. (3 Pars, on Cont. 9.) “It is enough, if from the instrument, by reasonable construction, the consideration can be collected.” {Douglas v. How-land, 24 Wend. 35.) The consideration expressed in this contract is the agreement by Corbitt & Macleay to deliver the coals at Salem for fourteen dollars per ton. It would not for a moment be claimed that if Corbitt & Macleay had signed this agreement, they could not have been held to deliver the coals at that figure. The consideration for the Gaslight Company’s promise was Corbitt & Macleay’s promise. Both parties need not sign the same paper. The written tender, alleged in the complaint, was a good signing by Corbitt & Macleay. (3 Pars, on Cont. 6.) It is not necessary to allege in the pleadings that the contract was in writing. {Taylor v. T. Patterson d? Go., 5 Or. 123.)