The opinion
Ingalls, J. (dissenting.)
The defendants executed and delivered to the plaintiff an instrument in writing, of which the following is a copy :
“ New Yobk,
May
13, 1861.
“We agree to deliver P. S. Justice, one thousand Enfield pattern rifles (with bayonets, no other extras) in New York, at eighteen dollars each, cash upon such delivery; said rifles to be shipped from Liverpool not later than 1st July, and before if possible.
“W. BAILEY LANG-.
&
00.”
The plaintiff subscribed no agreement or memorandum, paid no money, parted with nothing of value, and assumed no obligation on account of the defendants’ promise. The contract remains wholly executory, no part of the rifles having been delivered. The plaintiff instituted this action to recover damages for the failure of the defendants to deliver the rifles. The only question of any importance is, whether the mere subscribing and delivery of the above instrument by the defendants created a legal obligation on their part, which entitles the plaintiff to damages for a failure to deliver the rifles. The counsel for the appellant insists that the mere Subscribing and delivery of the said instrument by the defendants constituted a valid and binding obligation on their part, within the provisions of the statute of frauds, and conse
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quently the defendants were liable to respond in damages for a violation of their agreement. The provision of the statute of frauds,, which has any application to this case, is as follows : “ Every contract for the sale of any goods, chattels, or things in action for the price of fifty dollars or more shall be void, unless: 1st. A note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby.” The instrument in question was subscribed by the defendants; and so far the statute was complied with. But something further was required to constitute it a valid and binding contract; the agreement being wholly executory, it was indispensable that there should be some consideration for the agreement of the defendants, without which it was void. If the defendants had offered the rifles, the plaintiff was at liberty to refuse to receive them, and the defendants would have been wholly without remedy. The statute of frauds, while it declares that a contract for the sale of personal property for the price of fifty dollars or more shall be void, unless there is a note or memorandum subscribed by the party to he charged, does not declare that such note or memorandum, so subscribed, is all that is essential to constitute a valid contract. The statute may be complied with in the above particular, and yet the contract be wholly void because there Is no consideration to support it. It was not the intention of the legislature, in adopting that statute, to dispense with the necessity of having a consideration to support an agreement, but to require such note or memorandum in addition to such consideration. If there had been a consideration, however slight, for the defendants’ promise, they would have been bound, because they complied with the statute so far as the writing was concerned. If the instrument in question had been subscribed by the plaintiff, and had contained a promise on his part to receive the rifles and pay for them, such promise would have been a good consideration for the defendants’ undertaking. "We are not called upon to examine the numerous cases cited, by the counsel, touching the statute of frauds, because most of them have little or no bearing upon
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the question involved in the disposition of this appeal.. In my judgment the case is reduced to one question; whether an executory contract can he enforced, when subscribed by one party only, and there is no consideration whatever for such contract. I cannot bring my mind to doubt, but that such agreement is. wholly void. The judgment of the General Term should be affirmed with costs.
All concur for reversal, except Ingalls, J., who was for affirmance.
Judgment reversed and new trial ordered.