#### Yates, Plaintiff in Error, vs. Martin, Defendant in Error.

An oral agreement to execute a written agreement for the sale or disposal of lands, is not such an agreement as the party to whom such promise is’made, can enforce in law, provided the thing proim-ised to be done by the proposed written agreement, would, if done, be within the-prohibition of the Statute of frauds.

In this case the writing agreed to be executed by the defendant in error, was never executed ; and if it had been executed, it would have conveyed to the plaintiffin error an interest in lands. A suit brought for damages, because of the refusal to' execute the parol agreement, would be directly within § 8 of Title 1 of the Revised Statutes, page 162, and cannot be-maintained.

If the oral promise to make a written agreement touching an .interest in hinds,.is broken by a refusal to make such written agreement, a suit cannot be. maintained to recover damages equivalent to the benefits which a performance of the proposed written- agreement • would have been.. Otherwise, if the. oral agreement had boon for-the execution of, a written agreement not prohibit e,d by th§ Statute.,

Error to the late U,S..District Court for Milwaukee Co.,

The plaintiff in.error brought an action of assumpsit for the recovery of damages for the breach of a.verbal agree-ment, which in a variety of counts, .was specified,in va? rious ways andfforms.

The substance of the - agreement declared, upon, and stated in the declaration was as .follows : — On .the -eleventh day-of December,. 1846, at Milwaukee, in consideration that Yates, the plaintiffin error, at the special request of .Mai tin, the. defendant, in err or,, would, then and, theta-*119agree to pay to Martin the sum of ten dollars; Martin undertook and promised Yates to sign his name to a certain agreement in writing, which Yates, at the special instance of Martin, had drawn and written, that Martin would then and there deliver the said agreement in writing, so signed as aforesaid, to Yates ; which agreement in writing is as follows, to wit : — “ For and in consideration of ten dollars to me in hand paid, I hereby agree to accept of $5,000, above cost of all the real estate owned by me in Milwaukee,, and the furniture in my house : one half down and the other half in one year, secured by mortgage on the premises : This offer to stand open for twenty-four hours. Friday, 7 P. M.,. Dec. 11, 1846.”

The declaration alleged that Martin refused to sign the written agreement,, and contains sufficient averments to sustain the action, provided the basis on which it is found? ed is adequate for that purpose.

A *nolle prosequi*was entered upon all the common counts ; and after that the defendant, Martin, demurred generally to all the remaining counts, and Yates joined in demurrer.

The demurrer was argued,before the District Court,, and was. sustained by the Judge, as being well taken : and in that state the cause was brought into this. Court by writ of error.

& *Sea,*counsel for plaintiff in error,

made several points in support of the validity of the action, as specified in the declaration, amongst .'which were — .

That it' was .the natural right of any person to contract for any subject matter, or thing at his option, unless it was in conflict with legal prohibition ; and that in such a case the Court, could not avoid giying to such a contract *its,,**120full efficiency and effect. That the contract in question was such that it could be. enforced unless by' provision of law it was inhibited by statutory provision. To this point he cited 2 *Blackstone’s Com.,*446 ; *Cowen’s Treatise,*56; *Chitty on Contracts,*291 ; *Comyn’s Digest, Covenant A.*1; *Chitty on Contracts,*866.

Also, that a contract to make a contract is a legal and enforceable agreement which Courts of law will recognize: *Chitty on Contracts,*866: 39 *English Common Law Rep.,*408 ; 19 *Wendell,*502; *Comyn on Contracts,*2.

That this agreement was not within the Statute of frauds, and as defining the principle of that Statute, he cited; *Sugden on Vendors,*95, 96, 97 *and*131; *Chitty on Contracts,*66 ; 5 *John. Rep.,*275.

To show that the agreement in this case was merely an agreement to make an agreement, and hence not within the Statute of frauds he cited 8 *Medcalf’'s Rep.,*435; 4 *do.,*406 ; 9 *Medcalf,*435 ; 17 *Pickering,*538 ; 5 *Hill’s Rep.,*112; 6 *Wendell’s Rep.,*464; 1 *Binney,*454.

To show that if the contract in writing had been signed by Martin, Yates would have been entitled to all the damages that should ensue in case of breach thereof; and that having promised to execute the same, and having accepted the consideration upon which he agreed to execute it, he was liable in law for damage's; and those damages would have been commensurate to the benefits which would have resulted if the contract had been carried into etico*, ho cited *Chitty on Contracts,*389; JVo. 46 *Law Library,*31, 47 *and*34; 9 *Comen,*274; 2 *Denio,*133; 19 *Wendell,*464; 26 *do.,*436; 5 *Viner’s Jib. Contracts,*528.

*Brown, Attorney General, fy Arnold,*counsel for defend*121ant

argued that the agreement to execute the ágreement in question was within our Statute of frauds, inasmuch as if the supposed agreement had been signed it would have been within the provision's of that Statute, and to this point cited 2 *Story's Equity,*93; *Revised Statutes of Wisconsin, page*164. That if the contract alleged to have been agreed to be signed, had been signed, it might have been enforced on the Chancery side of the Court, if free from impeachment by the Statute of frauds. But that it being clearly within the Statute, could not be enforced. *Sugden on Vendors,*140, 138, § 8, *page*126, §24; 11 *Mass. Rep.*342. In the case last cited a deed was executed and delivered, under an oral agreement of the adverse party, to execute a bond of defeasance, at a future day.- The defeasance, if executed, would have created an absolute title. It was in that case, held that the agreement was within the Statute of frauds. See also to the same point; 5 *Mass. Rep.,*133; 6 *do.*460.

That the agreement to be operative, should be signed by both parties; and to this point was cited 5 *Bosanquet and Puller,*252 ; *Chitty on Contracts,*396 ; *Sugden on Vendors,*119.

That in order to ascertain and define what was meant and intended by the parties; all their acts relating to the matter of the Contract, were to be considered and regarded.

That an action brought upon an offer of the sale of •chatties, there being no consideration, there was no mutuality: 3 *Term Rep.,*653; 4 *Bosanquet and Puller,*252;

That the aforesaid contract was not enforceable in law because it was not subscribed, or to be. subscribed by both parties; and to this point was cited, 3 *Johnson's*Rep-,,.418; '6 *Wendell!s Rep.,*103; 12 *Johnson’s Rep.,*190.

*122Whiton, Judge, delivered the opinion of the Court — -- Hubbell, Judge, dissenting.'

*By the Court.*

Whiton, J.

The declaration in this case contains- a member of special' counts, alleging the same cause of action in different forms;- to which there is a general demurrer. The contract declared upon is a parol agreement, and is substantially as follows: “That Martin, on the 11th day of December, 1846, at Milwau: kee, in consideration that Yates at the special request of Martin, would then and- there agree'to pay him the sum-of ten dollars-, undertook and promised Yates to sign his name to a certain agreement in writing, which Yates, at the special request of Martin, had drawn and written, and that he would then and there deliver the agreement in writing so signed as. aforesaid to Yates, which agreement in writing is as follows: — “For and in consideration of ten dollars to me in hand paid, I hereby *agree to*accept of $5,000 above costs of all the real estate owned by me in Milwaukee, and the furniture in my house, one half down and the other half in one year, secured by mortgage on the premises; this offer to stand open for twenty-foup hours — Friday, *7*P. M., Dec. 11, 1846.”

The declaration alleges that Martin refused to sign the. written agreement, and contains the necessary averments to-charge him, if'the contract declared upon-is of such a nature as to entitle Yates to recover.

The Judge of the District- Court of Milwaukee County, sustained a demurrer to the declaration, and judgment was thereupon rendered against Yates, who brings the case here to reverse the judgment. Several objections were taken to the declaration by the counsel for the de-, fend&nt on the argument; one is, that the pai;ol agree». *123naent sued upon, is void, for the reason that the written one would have been utterly worthless and void for uncertainty, and for want of mutuality, if it had been executed; another is, that admitting the written agreement would have been of any force or effect, it would have conveyed an interest in land, and that consequently the parol ágreement to execute it, is within the Statute of frauds, and therefore void. It is clear that if the written agreement would have been worthless for all purposes, the parol agreement to make it is not of such a nature as. will support an action; but this case can be disposed of without inquiry into this objection. I shall therefore confine myself to the consideration of the effect of the Statute of frauds upon the contract.

Qur Statute differs somewhat from the English one; and the 8th section of title 1st, which is principally relied upon by the defendant in error, is as follows:

> “ Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands shall be void unless the contract or some note or. memorandum thereof, expressing the consideration, be in, -writing, and be subscribed by the party by whom the, lease or salo is to be made.”

The defendant contends that the parol contract.declared upon, is a contract for the sale of an interest, in land; within the meaning of the Statute, if it has., any .validity, because the written one, would, if it had been executed by the defendant, have conveyed to the plaintiff, the right or power to purchase the real estate described in it. On ' die other hand, the plaintiff contends, that the written agreement or contract would, if it had, been executed by fhe defendant, according.to the parol, agreement, have. *124been a mere offer on his part to sell the property on the terms mentioned in the agreement, which offer the plaintiff might or might not have accepted, and could not have the effect- to convey any interest in land within the meaning of the Statute. The question before the Court arises, upon the consideration of the nature of this agreement; for if in case it had been executed, it would have conveyed any legal or equitable interest in the real estate, mentioned in it, to the plaintiff, the agreement declared upon, which is an agreement to make the written agreement, is an agreement for the sale of an interest in land, and therefore within the Statute. I am of opinion that the written agreement would have conveyed to the plaintiff, an equitable interest in the real estate mentioned in it, if it had been executed according to the parol contract set out in the declaration, and would have been valid for any purpose. *Sugden on Vendors, 126*and 138; 4 *Mass. Rep.,*488; 5 *do.,*133; 6 *do.,*460; 11 *do., 342.*

I can see no difference, so far as the question before the Court is concerned, between this written agreement and a- bond conditioned, that if the plaintiff would pay a certain sum of money by a certain time, the defendant would convey the legal title to the real estate in question; 'for it can make no difference whether the obligation is to convey the title to or interest in land, merely, as parol contracts for the sale of either, are equally within the Statute.

It cannot be doubted I think, that such a bond would have conveyed to the plaintiff an interest in land, as it would have given him the power tp compel the defendant to convey the land. It is equally clear, that the plaintiff would have had the same power, if the. defendant had *125executed the written contract; that the plaintiff might not have chosen to avail himself of it, is true, but the obligation to convey, would have been as binding on the defendant as though the plaintiff had himself been bound to pay the stipulated price of the land, and the latter would have had an interest in the land, as completely vested in him as though he was thus bound.

It can make no difference that the obligation of the contract was all to be on the part of the defendant; his interest in the subject matter of the contract would be affected as much as thpugh • both parties were- equally bound. Such being the nature of the agreement which the defendant agreed to execute, (if it would have had any force on validity at all), there can be no doubt as to the nature of the agreement to make it. It must be considered a parol agreement to sell an interest in land, and consequently within the Statute. I have considered the written agreement as though it might have been enforced, had the defendant executed it. It was contended in the argument for the defendant, that it would have been entirely void, for the reason that it was vague, uncertain, ahd without mutuality, and that the parol agreement sued oh was consequently void also. I have not thought it necessary *to*consider that part of the case, and of coursé, po opinion upon it is given.

The Judgment of the District Court is affirmed with costs.

*Hubbdl, J.,*

dissenting. There is but One question in this ease. Whether the contract sued upon is within the Statute of Frauds *1*

Yates sues Martin for damages for the breach of a verbal agreement. The ¿eneral demurrer admits the agree*126ment as set forth in the declaration. That agreement was,' that Martin, in case Yates would pay him ten dollars, would sign and deliver to him a written instrument,, of which the following is a copy:

> “ For and in consideration of ten dollars to me in hand paid, I hereby agree to accept #5,000, above cost of all the real estate owned by me in Milwaukee, and the furniture in my house, one-half down and the other half hr one year, secured by mortgage on the premises. This of fer to stand open for twenty-four hours.

> Friday evening, 7 P. M., Dec. 11,1846v”

This sole point is, whether this instrument;, had it beéi¿ executed and delivered, would have given Yates “ any interest” in Martin’s. “ lands 1” The Statute of Frauds of this State, declares, every contract for the sale of any interest in lands, void, unless it is in writing; and the better opinion seems to be, that a contract for a contract is within the Statute, provided the second contract conveys any interest in land- And this interest is admitted to be the same, whether it is. present or future, legal or equitable, direct or contingent.

If, therefore, the writing to which Yates became entitled under his verbal agreement, conferred per se, any such interest, the verbal agreement was void, and this action cannot be sustained. If, on the contrary, that writing by itself, as it would pass from the hands of Martin to Yates, conveyed proprio *vigore,*no such interest, then this, action is well brought.

What then would that writing convey *1*It was a written offer by Martin, to sell his real and personal estate for a fixed price. It was no better and no worse for having: been purchased by ten dollars, paid by Yates, except that *127-Such payment 'would, enable Yates to enforce it, should hé elect to do it and should Martin refuse. 'But was it ad investment which any holder could enforce as it stood *1*Certainly not. Without a tender of money or a written acceptance on the part of the holder, Martin would not t>e bound to fulfill it. It gave no *present*éláim on Martin’s land, because something must bedone by the holder, to entitle him to enforce it. It gave *no future*claim, because *there was no future*event then certain to happen, which would make it available. As it came from Martin, ^pursuant to the verbal agreement, it was as unavailable in equity as ait law. It conveyed no interest, present or future, equitable of legal, positive or contingent. It was a naked offer to sell at a fixed price. Yates might or might not accept it. Until he did accept, Martin could no more enforce it than a blank paper. It was no contract until some further act wás done by Yates; and that act Yates was not bound to do. Martin had no interest in it, which he could enforce, in law or equity, and Yates had but the option of doing some future act, by which he would acquire such an interest. It was naked paper in thé hands of Yates, blank paper to both him and Martin, until something was done, and that something Martin could not compel, and Y ates was at liberty to refuse. It was in no sense therefore, the conveyance of any interest or ■a contract for any interest; it gave to Yates the naked possibility, by’some future act on *his*par t, which'he might perform or decline, to acquire an equitable interest in Martin’s estate. This was its whole scope and meaning; its entire purport and effect. If it can be said thát Yates acquired an interest in Martin’s pfoperty by such an instrument, then evefy man has an interest in his neigh*128bor’s land, when he knows its market price and has th© money to buy. Because he has a *possibility,*by a single act of his own, to get the property at a given price. Every man who advertises his Farm for *sale*in a public newspaper, stating the terms, gives to all the world a simir lar interest in his land; because by *complying*with the terms, they will get a title, or by *accepting*the terms,, they will get a right to the title. The upshot of the matter, as I understand it is, Yates wanted to get Martin’s terms of sale: Martin agreed to give them in writing for ten dollars. Yates tendered the money and Martin refused to fulfil. Had the agreement been to publish the terms in a newspaper in consideration of ten dollars, it Would have been the same. The terms, when published* would have given all the wo^ld the right to comply; and. the consideration paid by Yates, would have been sufficient to bind Martin. We are not to inquire into men’s motives in making agreements or paying *their*money. Yates may have panted this writing for one purpose; Martin may have supposed it for another; no fraud is alleged, and the consideration is sufficient to bind the bargain. Yates may not have wished to comply with it. He may have wished to use it in some other transaction. It is enough for us to know that he wanted it, and had some trouble, expense and loss in preparing, on his part, to ful-fil the verbal agreement, the agreement for the writing. Martin made the agreement, as appears by the declaration, and broke it, and damages are alleged as the conse-^ quenco of the breach. The demurrer admits the aver-: ments of the declaration: it seems to me there is no escape for Martin under this demurrer. What defence he may have on the trial; what value Yates can fix upon the. *129writing; what amount of damages, more or legs, he maybe able to prove he sustained by reason of not obtaining the writing, is fqr another tribunal. This Court cannot say there was no damage; much less, that there was no breach; and, as to the contract, I think that it was legal and might be enforced, not beiqg within the Statute of frauds, by any possible correct construction.

To determine this case, there is no occasion to go back to the books or to the Courts. It all depends upon the'pa* per writing vriiich was the object of the verbal agreement, We all can see what that would have been good for. Any well informed business man can tell what could be done with it, as well as the most learned Judge. If Martin could not sue on it or enforce it; if Yates had the right to accept it or let it alone; if no possible future event could make it available to either party, unless Yates exercised a *volition*upon it, and did some act to make it binding, then it is as certain as any mathematical proposition, that, as it came from Martin, as it was agreed for in the verbal contract, as it should have been delivered to Yates, it conveyed no interest in land, present or future, equitable or legal, direct or contingent.

These are my views of the case; and I think the judgment of the Court below ought to be reversed; but my brothers differ froip me -and the judgment must remain.