The opinion
Hogeboom, J. (dissenting.)
I think the paper set forth in the complaint contains a valid agreement. It alleges a valid and sufficient consideration, to wit, one dollar, and the defendant agrees to do one of two things; to wit, either to purchase the plaintiff’s property, or to have the pictures of himself, wife and children painted by the Count, at a specified price.
It has been supposed to. want mutuality, and hence to be void on that account. But the case relied upon for that purpose (Lester v. Jewett, 12 Barb. 502 ) was overruled, on. that point, in- the Court of Appeals, (1 Kern. 459,) and the latter court say: “ The question is not whether the defendant is bound to perform his contract. Mis objection to purchase according to its terms, is admitted.” Moreover, the complaint alleges the acceptance of this contract as a valid, subsisting contract between the parties ; and we must assume that the plaintiff, on the trial, under such an allegation, will prove a valid, legal acceptance, so as to make the contract obligatory on him, Further, the word “agree,” which is found in this contract, is the word of both parties, and implies a mutual contract. (Barton v. McLean, 5 Hill, 256 . Andrews v. Pontue, 24 Wend. 285 .)
The agreement is not obligatory as to the purchase of the land. It is not signed by the vendor; it is not specific or definite as to the property to be sold, or the price; and it is not by its terms obligatory on either party to make the sale or the purchase. The defendant was not, therefore, bound to make the purchase; but he agreed if he did not, to have the pictures of the family painted by the plaintiff. This, I think^ he was bound to do; for he had agreed, upon a valid consideration, to have the same done.
I do not think the defectiveness of the agreement, in regard to the land, prevents the alternative portion of it from *178 being operative or obligatory. The contract is not to fail, even though a part be illegal, if, upon any reasonable construction, it can be supposed to meet the intentions of the parties. (Darling v. Rogers, 22 Wend. 483 .)
These two parts of the agreement are entirely distinct and separate. They relate to subjects entirely independent of each other, and were evidently so understood by the parties. It is "said that the sale and purchase of the real estate were the main object of the contract, and this failing, the whole contract must fail. It does not appear which was regarded as the more desirable portion of the contract, by either party. It does appear that they contemplated the contingency that the purchase might -not be conrpleted, and provided for such a contingency by the substitution, in that event, of another contract. It is not the case, therefore, of a contract embracing several particulars, all of which, by its terms, were to be carried into effect, and afterwards this is not done, of becomes impossible; but of a contract embracing two distinct parts, both of which are not to be carried into effect, but only the second, in the event of the failure of the first. It is the case of an alternative or substituted contract; and I see no object tion to if whatever, in law or in reason. Have parties not a right to .make contracts of that character ? If DeBeerski had signed the' instrument, (and I have endeavored to show he has done what is equivalent,) would Paige not have b.een bound by it, so far as to be obliged to' perform the required alternative, in case the purchase of the real estate was* not consummated ?
If A. and B. agreed to meet at a certain time and place, at which A. agreed, in consideration of $100 paid to him by B., to purchase B.’s house and lot for $5000, or if he did not, then to purchase B/s. carriage and horses, for $2000, which agreement was signed by B. alone, I suppose the agreement would be good against A. for the carriage and horses, though void as to the land. This agreement is similar in legal effect, and sets forth, in my opinion, an obligation on the part of *179 the defendant which he was bound to perform. The breeches of the contract on the part of the defendant, and the averments of performance on the part of the plaintiff, and of damages sustained, are made with sufficient distinctness and particularity to save the complaint from being bad on demurrer.
[Albany General Term,
March 5, 1866.
I say nothing of that part of the agreement which refers to the board, because if the agreement is good for the pictures, the complaint is not demurrable; though it strikes me it is also good for the board.
I think the complaint stated facts sufficient to constitute a cause of action; and that the order of the special term should be reversed, with costs, and the defendant have leave to withdraw the demurrer, and answer on payment of costs.
Order affirmed.
Miller, Ingalls and Hogeboom, Justices.]