#### HAMILTON STEVENS, *pl'ff in*error, *vs.*C. J. COON, *def't in*error,

1 >■ *Error to Jejj'erson county.*)

A coNTtt.ioT in v/ritinc;, ns follows: “In consideration of A. B. entering the west half of the north-oast quarter of section 35, in town 13, range 13, I bind myself that the said eighty acres of land shall sell on or before the 1st October next for two hundred dollars or more, and the said A. 11. agrees to give mo one-half of the amount over two hundred dollars said land may sell for, in consideration of my warranty. C. D.” “I agree to the above contract, A. B;” is void, because it binds the warrantor to the performance of a legal impossibility.

If the contract had been that the land would bo worth two hundred dollars by a given day, a recovery might be had upon it, if the land did not rise in value to that sum.

Coon brought an action of assumpsit against Stevens in the Jefferson District Court upon a written contract, by which Stevens bound himself that a certain half quarter section of land which Coon was about to enter, should sell by a given day for 0200, or more, and Coon agreed to give Stevens one-half of all the land should soli for over $200.

On the trial in the court below, Coon, the plaintiff, proved the entry of tlic land, and introduced evidence to prove that the land, at the time specified in the contract, was worth about $1 25 per acre.

Upon this testimony, the defendant moved the Court to instruct the jury as in case of a non-suit, for the following reasons:

ftl. Because the said supposed contract was a *nudum pactum.*by which the defendant received no benefit, and the plaintiff no injury.

2. Because the supposed contract assumes to bind the defendant to perform an impossibility.

8. Because said writing discloses a gambling contract, if any.”

The Court overruled the motion and refused the instruction asked for, and the jury returned a verdict in favor *of*the plaintiff for $116 50; upon which the Court rendered judgment. To reverse this, Stevens has prosecuted this writ of error.

Beighasi, for pl’ffin error,

declined opening the argument.

Whitok, for dof’t in error:

The contract upon which this suit is brought, is said to bo a *213*wudum pactum.*Such cannot he the construction given to tho writing; it is a fair agreement that might result in benefit to one pr the other of the parties.

It is also alledgsd that the performance of the contract is impossible. This is a mistake. It is not only possible but probable. '

Again, it is said that it is a gambling contract, and as such, cannot be recovered upon at law. This is obviously not the case.— Stevens knew the country and was acquainted with the land, but had not money to enter it: Coon had money, but knew nothing of the land, and upon Stevens’ representations, agreed to enter it and give him one-half of all it would sell for over $200, in a given time, and Stevens bound himself that it should sell for that sum or more by the time specified. This was a perfectly fair arrangement, and neither gambling nor against public policy; and was one that might have resulted to the mutual benefit of both the parties.

Bbighah, in reply:

The motion for a non-suit in this case, was in effect, a demurrer to the evidence, and submitted the question of law to the Court, whether, upon the testimony, the plaintiff could recover. If the Court decided improperly in overruling the motion, it was error. 4 Call, 17.

The contract itself is a gambling contract, ana against the policy of the law, and as such, a recovery cannot be had upon it, 2 Mass. Rep. 8. 3 Pick. 449.

The contract is void,because it bound Stevens to the performance of anirnpossibility. When Coon entered the land,no one but himself had any control over the sale of it. It is immaterial how high the land might have risen in valuefif Coon did not choose to sell,Stevens had no power to compel him to do so for $200, or any sum over. A legal impossibility of this kind is not binding on a party, even if he has entered into a contract for the performance. Coke on Lit. 208. Podrieron Obligations, 71. 2 Saund. Rep. 137,d.— 6 Petersdorff’s Ab. 218.

Opinion of the Court, by

Chief Justice Dükbt:

Error is brought in this case to reverse a judgment of the District Court of Jefferson county.

Coon, plaintiff below, brought his action of assumpsit against Stevens, defendant below, to recover damages on a liability growing out of a contract, which is in the words, &c., following, viz:

> *214‘‘Astor,.March 23d, 1839. In consideration of C. J. Coon entering the west half of tho north west quarter of section 35, in town 13, rango 13,1 bind myself that tho said eighty acres of land shall sell, on or before the 1st October next, for two hundred dollars or more, and the said Coon agrees to give me one half of tho amount over two hundred dollars said land may sell for in consideration of my warranty. HAMILTON STEVENS.”

> “I agree to the above contract, C. J. COON.”

> “JOHN S. HORNER.”

At the August term of the said Jefferson District Court, in tho year 1840, tho said defendant Stevens pleaded the general issue which was joined by tho said plaintiff Coon, and after several continuances, the case was tried at the October term, 1842. On the trial, the above contract, and the Receiver’s receipt to said plaintiff Coon, for the purchase money for said tract of land described, in said contract, were read in evidence to the jury; and Abraham Vanderpool, a witness testified; “ that he had visited that part of the country whore the land lies specified in said writing, and was upon the samo, as he has no doubt, and estimated the present value of the same at one dollar and fifty cents per acre, and that in October, 1839, it might be worth one dollar and twenty-five cents an acre.” Upon this evidence and testimony the plaintiff rested his case.

In view of the construction put on the contract read in evidence, the jury found for the plaintiff $118 50 in damages, and judgment was entered thereon. There is manifest error in this decision of the court. From an inspection of tho contract, it is obvious that it is not such an one as is obligatory on either party.— There is no reciprocity of benefit, and it binds the defendant below to the performance of a legal impossibility, so palpable to tho contracting parties, that it could not have boon seriously intended by the parties as obligatory on either. Tho undertaking of the defendant below is, *“*that plaintiff’s tract of land shall sell for a certain sum by a given day.” Is it not legally impossible fol-ium to perform this undertaking? Certainly. No man can, in legal contemplation, force the sale of another’s property by a given day, or by any day, as of his own act, The plaintiff was well apprized of the deficiency of his contract on the trial, as the testimony of his witness was entirely apart from the contract sued on, and set up a new contract and such an one 03 the law would *215have recognized. If the contract had been that the tract of land would be worth two hundred dollars by a given day, then it could have been recovered on, if it did not rise to that value in the time. 1 Comyn on Contracts, 14, 18,18; 1 Comyn’s Dig. Title, Agreement; 1 Pothier on Obligations, 71; 6 Petersdorf’s Abridg. 218; 2 Sand. 137 (d.) The District Court could not have entered judgment on the finding of the jury in this case. The construction of the contract by the District Court, was erroneous.

Bkigbum, for plaintiff in error.

Wjiiton, for defendant in error.

Judgment reversed with costs.