#### SOLOMON MIZELL, JR., *v.*JOSEPH H. BURNETT.

Under the statute of frauds a contract, in writing, to sell land, signed by the vendor, is good against him, although the correlative obligation of the buyer to pay the price, is not in writing, and cannot be enforced against him.

Where the owner of timber trees, living in twenty-two miles of the vendee; ottered, in writing, to sell said trees, provided-the other would comply with certain terms, which were not complied with for twenty days, at the end of which time, performance of the precedent terms was ottered and refused by the seller, who also refused to perfect thd contract; Held, upon the ground, that the delay was unreasonable, that the plaintiff was not entitled to recover upon the written offer or agreement. A right depending upon a condition precedent, does not accrue unless the condition be performed, although the performance becomes impossible by the act of God.

ActioN of assumpsit, tried before bis Honor, Judge Ellis, at tbe Spring Term, 1857, of "Washington Superior Court.

Tbe defendant was tbe owner of a tract of land on tbe Eoanolce river, called tbe ’Walling tract, on which tlicre were growing a large number of white-oak trees, suitable for making staves. It appeared that tbe plaintiff and defendant be*250ing in treaty relative to the sale and purchase of these *trees,*the former, about 1st of February, 1853, wentto examine them, and thence went to see the defendant, who lived at William-ston, Martin county. What then took place between the parties did not appear, except as may be gathered from the evidence thereafter arising. On the 14th of February, 1853, the defendant wrote to L. S. Webb, cashier of the Windsor Bank, who lived in the town of Windsor, about seven miles from the residence of the plaintiff, a letter, of which the following - is a copy:

*“*WilliaMStoN, Feb’ry 14th, 1853.”

“ Sir: — I sold Solomon Mizell, Jr., some oak timber, amount $800. I was to take such names to the notes enclosed as yon would write me were good for the amount. I also, send a letter over to Solomon Mizell, Jr., please give it to him (to-day) if he is in town.”

In the letter to Mr. Webb, was enclosed the following letter of the same superscription and date, directed to the plaintiff:

“ Sir: — I received your letter of the 10th inst., and would say in reply, you can have my oak timber on the tract,of land, known as the Walling tract, on Roanoke river, as per-agreement when you were here, for $800, in two notes, 12 and 18 months from date, with interest from date, with such security as L. S. Webb says is sufficient for the kmount. I am unable to get over, but you may consider it a trade, you complying with the above. You can get your notes fixed as above stated; show them to L. S. Webb, and get a letter from him, to me, stating that the security is sufficient, and all will be right; then I will give you a right to the timber as per agreement.” Signed by defendant.

“ P. S. I have enclosed the two notes to L. S. Webb for you to fill up.” J. H. B.

“ I will be at home Saturday next, or any day this week, or you can write to me what day you will come, and I will be here. Signed, J. II. B.”

The letter addressed to the plaintiff, with two blank notes, *251were, in a day or two, delivered to tbe plaintiff, wbo remarked, that be and defendant had made the trade as stated in the two letters. He said further, on the occasion, that he would have the notes signed, and return with them a letter from Mr. Webb as requested, or 'go over, and deliver the notes to defendant.

On the 19th of February, in the same year, one Wynn called on the defendant and offered him one thousand dollars for the timber in question.

On 22nd of the same month, (Feb’ry) the defendant wrote to Mr. Webb as follows:

*“*WilliaMstoN, 22d of February, 1853.”

“ Sir : — I enclosed two notes to Mr. Mizell to sign, and di- ‘ rected him to let me hear from him. Not hearing from him, or seeing him, I promised it to another man, presuming from his conduct, that he has abandoned the trade. The other man has been waiting for some time, and has been urging me to say what I will do with Mm. I put him off for some time, until Mizell could come or write, and he has not not done either.” Signed by the defendant.

This letter was received the day it was written. About twelve days aftqr it was received, the plaintiff called on Mr. Webb, with the notes signed, and the latter gave him a letter to the defendant, stating that the notes Were good beyond doubt. At the same .time, Mr. Webb communicated to plaintiff the contents of the defendant’s letter of the 22nd of February/not having had an opportunity of doing so sooner. The plaintiff, thereupon, stated as his reason for not returning sooner with the notes, that his wife had been very sick, and that there was, and had been, a freshet in the Eoanoke river, which prevented him from getting over to Williamston. The plaintiff thence proceeded to visit the defendant at his residence, going a circuitous way tb avoid the difficulties of the flood in the river. He lived in Bertie county, about, twenty-two miles, by the usual route, from the defendant, the latter took the letter containing the notes, and having read them, returned the notes to the plaintiff, and.put the letter in his *252pocket, refusing to make a title to the trees. No reason was given by bim, at the time, for refusing to complete the trade, but as soon as the plaintiff left him, he put his refusal, upon the ground, that the notes were not good.

Mr. "Webb testified that the notes were abundantly good. Shortly after this interview and tender, the defendant conveyed the timber trees to Wynn.

Defendant resisted the plaintiff’s recovery,

1st. Upon the ground,- that the evidence showed only a proposition on the part of the defendant to sell, but no acceptance of the terms previously to the sale to Wynn.

2nd. The defendant had the right, at any time, to withdraw his proposition before its acceptance by the plaintiff, and in his second letter to Mr. Webb, had done so.

3rd. The plaintiff did not tender the notes in a reasonable time.

4th. The contract was not written so as to comply with the statute of frauds.

The Court, by agreement, reserved the foregoing points.

The jury found a verdict in favor of the plaintiff for $200 with interest from the sale to Wynn, it being admitted that such was the proper amount of damages, if plaintiff was entitled to recover at all.

Afterwards the Court decided the questions reserved in favor of the plaintiff, and gave judgment on the verdict, from which defendant appealed to this Court.

*Winston, Jr.,*for plaintiff.

*Heath,*fer defendant.

Pearson, J.

It was properly conceded that a contract to sell“ growing trees” is within the statute of frauds, being a contract to sell “ land or some interest in, or concerning the same.”

We are of opinion with his Honor, that to make a contract to sell growing trees binding on the vendor, it is sufficient that the contract be signed by him, and it is not necessary *253that it should also be signed by the vendee. The statute provides that the contract shall be signed by the “ party to be charged therewith.” This answers the. purpose, which is to exclude perjury in an action to enforce the contract. In reference to the other party the statute is silent, and there is consequently nothing to justify the construction, that he is also required to sign. If the purchaser of land pays the price in cash, taking a bond for title, there is no reason why he should put his signature to the contract. So,'if he gives a note for the price, that is sufficient, although the note make s no refer ence to the contract. So, if the vendor binds himself in writing, and is content to take the verbal promise of the purchaser to pay the price, it is his own fault, and he must blame himself for the folly of getting into a situation where he is bound, but the other p'arty cannot be charged if he chooses to insist upon the statute. Common justice, and the general principles of law, require that there shall be a mutuality in contracts; that is, if one party is bound the other ought to be. But there may be exceptions. Although it is a maxim that a contract is never binding unless there be a consideration, yet, there is a distinction between a consideration and the mutuality of contracts in reference to the obligation thereof, and the fact that by some other principle of law, or the provisions of a statute, one party has it in his power to avoid the obligation, although it suggests a very forcible reason for not entering into a one sided contract, does not necessarily have the effect of making such contract void as to both parties. One agrees to deliver, at a future day, a certain article to an infant, in consideration of his promise to pay the price, the contract is not void, although the infant may avoid the obligation on his part,'if he chooses to protect himself on the ground of infancy. So, if one agrees in writing to convey land in consideration of a verbal promise of the other party to pay the price, the contract is binding on the vendor, although the vendee may avoid the obligation on his part if he chooses to protect himself under the provisions of the statute. It is not considered, in either case, that the contract *254is *nudum paobum*and void for the want of consideration. This is the result of the English decisions in reference to the statute of frauds, and although our statute is not precisely in the same words, yet the substance is the same, the purpose is the same, and the difference in the wording is not such as to justify a difference in the construction ; *Laythoarp*v. *Bryant,*2 Bing. N. C. 744, (29 Eng. Com. L. Rep. 469) ; *Allen*v. *Bennet,*3 Taunt. Rep. 170.

We also agree with his Honor, that the letter of the defendant to the plaintiff, dated February 14th, 1853, is a sufficient writing, or memorandum of the contract,- to bind the defendant and subject him to an action for a breach, provided there be no other difficulty in the way of the plaintiff. The writing being required only as *midenoe*of the contract and not to constitute it. This is well settled, both in Law and Equity ; *Jackson*v. *Lowe,*1 Bing. 9 ; *Bateman*v. Phillips, 15 East 172 *; Laythoarp*v. Bryant, supra ; 3 Atk. 503, 1 Vern. 110. According to the view we take of the case, it is not necessary to decide whether the letter of the 14th of February, above referred to, is only a proposition to sell, or contains in itself the contract, or is evidence of a contract previously made ; for, in either view, the plaintiff was required to execute the two notes with approved security, and the only question is, whether he did execute and tender them to the defendant in time to perfect his right of action.

If the plaintiff had tendered the notes on the Saturday referred to, or any day during that week, it is clear that the defendant ■would have been bound. There is strong ground to support the position, that according to the proper construction of the letter, the plaintiff was required to deliver the two notes during the week, or at all events, to *write*during the week, and fix on a day- — the purpose being not to let the matter stand open and leave him unbound longer than that week. It would seem the defendant wrote this letter reciting the agreement or purpose to bind himself in writing, with the expectation that the plaintiff was also to bind himself during that week. But we put our decision on a broader ground, The plaintiff was cer*255tainly required to deliver tlie notes witbin a reasonable time, and we think a delay of twenty days was, under the circumstances, unreasonable, and consequently the plaintiff did not, by his tender of the notes, acquire a right of action.

What is a reasonable time must, in all cases, depend upon tlie circumstances. The nature of the transaction may make a delay unreasonable, which, in 'a transaction of a different kind, would not be so. According to the law-merchant, notice of the dishonor of a bill must be by the return mail, for “ promptness is the life of trade.” So, if one offers to take one hundred dollars for his horse, the proposition must be accepted *at the time ;*for nothing els’e appearing, his object is to sell at that time. So,.the question may depend upon the condition of the parties. If one-is bound, and the other *is footloose,*the time must be short, for it would be unreasonable to keep the parties in so unequal a condition for a long time. This is our case. The defendant whs bound in writing, the plaintiff was *foot-loose.*If a storm had destroyed the trees, he was not bound to complete tlie trade, even after his conversation with Webb, and it was unreasonable to delay twenty days, and then seek to get the advantage of an appreciation in the value of the timber, or of the fact, that it was worth more by some $200, at the time of the contract, than the owner supposed.

This delay was the more unreasonable, because the defendant earnestly insisted that the business should be closed on tlie next Saturday, or some day during that week, which ought to have quickened the plaintiff’s diligence.

The suggestion that the delay was occasioned by the sickness of the plaintiff’s wife, and the freshet in the river, will not avail. Assuming that she was sick, it does not appear how that made it *impossible*for'him to procure the notes. As to the river being up, that did not prevent the defendant’s letter of the 22d, from reaching its.destination, and the plaintiff could have crossed in the same way. Nor did it prevent him from crossing to make the tender. . It is true, he went a round*256about way, but bis being able to do so, repels tbe idea of an impossibility.

But in tbe second place, it is familiar learning that a right, depending upon a condition precedent, does not accrue unless tbe condition be performed, although performance becomes impossible by tbe act of God. There is a diversity between a condition subsequent by which an estate is to be defeated, and a condition precedent by which an estate is to be created, or a right is to accrue. Co. Litt. *“*Conditions.”

The defendant agreed to convey the timber to the plaintiff, provided he executed the notes in a reasonable time: The principle is the same as if the condition had been to execute the notes in ten days. Performance is necessary to give a right of action.

Pee CueiaM. There is error. Judgment reversed, and *a venire de novo.*