DeBeerski v. Paige , 47 Barb. 172 ( 1866 )

Miller, J.

It is evident that the contract upon which the plaintiff relies to sustain a recoveiy, in this action, so far as it relates to the sale of the lands, is void and of no effect, because it is not signed by the party by whom the sale was made, in accordance with the statute. (2 R. S. 135, § 8. Worrall v. Munn, 1 Seld. 229. Newton v. Bronson, 13 N. Y. Rep. 587. Tollman v. Franklin, 14 id. 584. Reynolds v. Dunkirk and State Line Railroad Co., 17 Barb. 613.)

Is it valid in reference to the other provisions, relating to the. painting of the portraits and the board of the defendant and his family ? I think it is not, for several reasons.

1. Those provisions of the contract are based entirely upon the agreement for the sale of the land, which of itself is invalid, and for that reason insufficient to sustain the other conditions of the contract.

2. The contract is not severable. To sustain it we must assume that the sale of the real estate was the basis of the agreement, and hence, how can it be severed P The agreement was to purchase the real estate if the defendant was satisfied with the location and advantages, and in case no purchase was made, then to pay for the pictures, &c. It therefore depended upon the contract for the sale of the real estate. This was the foundation of the whole contract, and a part of it can not be separated, so as to make it distinct from the remainder. If part of an entire promise is by the statute of frauds void, the whole is void. (Van Alstyne v. Wemple, 5 Cowen, 162. Mackie v. Cairnes, Id. 548. Thayer v. Roch, 13 Wend. 53.)

The case of Darling v. Rogers, (22 Wend. 483,) to which we have been referred, is not an authority which sustains the position that this contract can be severed, and does not overrule the cases before cited. In that case it was held that a trust deed or assignment was a valid instrument as a trust to sell, although it contained a power to mortgage which was void. The power to mortgage was held to be innocent in its nature, and the principle that the instrument should rather be made available than suffered to fail, was held to apply, as the prohibitory instrument did not declare the deed to be void. The statute applicable to the case at bar expressly declares that every such contract shall be void.

3. The contract does not bind both the parties to it, as is claimed, and the authorities cited by the plaintiff do not sustain that view. There is no mutuality in its provisions, and the plaintiff is not bound to paint the portraits, or to furnish the board. He is under no obligation to do any thing, on his part.

The consideration of one dollar, expressed in the writing, is applicable to the sale of the real estate, and is vitiated by the provision of the statute which renders it nugatory and void.

4. It may be added, that the contract is extremely indefinite and uncertain, as to some of the property intended to be contracted, in its provisions; and upon no sound principle, looking at the intention of the parties, can it be assumed that the defendant intended to be bound by the agreement in regard to the portraits and the board, in the face of the conceded fact that the agreement in regard to the real estate was void.

5. The complaint in the action claims to recover, as a part of the damages sustained by the plaintiff,.the loss of the sale of the real estate; and this is a material and important part of the plaintiff’s complaint. It is not now claimed that any recovery can be had on account of this breach of the contract; but as it is based upon the contract for the sale of the real estate, which is confessedly void, it seems to me the complaint, in this particular, is substantially defective. This being manifest, for the reasons already given, it follows that the order of the special term should be affirmed, with costs.