Swanson v. Priest
| Decision Date | 06 April 1948 |
| Docket Number | No. 3691.,3691. |
| Citation | 58 A.2d 207 |
| Parties | SWANSON v. PRIEST et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Rockingham County; Wheeler, Judge.
Suit by John E. Swanson against Oliver W. Priest and others to compel specific performance of an agreement to sell real property and for incidental relief. Transferred without ruling to the Supreme Court.
Decree for plaintiffs in accordance with opinion.
Bill in equity for specific performance to convey real estate. The dispute arises out of a memorandum signed April 6, 1946, by the defendant Oliver W. Priest which reads as follows:
‘Portsmouth, N. H.
‘I hereby agree to sell to John E. Swanson of 35 Market Square, Newburyport, Mass. the land and buildings on Ladd Street in Portsmouth, N. H., described in my mortgage to the Portsmouth Trust & Guarantee Company, dated June 2, 1919, recorded in Rockingham Registry of Deeds, book 730, page 344, for the sum of Seven Thousand ($7000.00) Dollars, payable on delivery of warranty deed, within ten days, free of all incumbrances except 1946 taxes.
‘Witness:
‘Alonzo W. Parks
‘Frederick Rowe’
On the same day that this was signed the plaintiff orally agreed to buy the property according to the terms above set forth.
Mary W. Priest, Oliver's wife, who is joined as a defendant, refused to sign this agreement, but the next day signed with her husband an agreement to sell to the defendant company, McIntire Enterprises, Inc., which had full knowledge of the situation, for $10,000. The plaintiff twice made proper tender to Priest of $7,000 within the time limited by the agreement, but the latter refused to accept the tender or to execute the deed. The plaintiff brought a bill in equity against both Priests for specific performance and incidental relief, at the same time making a real estate attachment. On the same day the Priests conveyed the property to the defendant company receiving for it the agreed price of $10,000. The plaintiff then filed an amendment to his original bill joining the company as a defendant and asking again for specific performance and incidental relief.
The question as to whether the plaintiff is entitled to relief against any or all of the defendants was transferred without ruling by Wheeler, J. Edgar A. Blanchard, of Portsmouth, for plaintiff.
George P. Cofran and Thomas E. Flynn, Jr., both of Concord (Thomas E. Flynn, Jr., of Concord, orally), for defendant McIntire Enterprises, Inc.
Harold M. Smith, Ralph G. McCarthy, and Henry M. Fuller, all of Portsmouth (Henry M. Fuller, of Portsmouth, orally), for defendants Priest.
The memorandum signed by the defendant, Oliver W. Priest, fulfills all the requirements of a valid memorandum for the sale of land. R.L. c. 383, § 1; Dunlap v. Foss, 82 N.H. 449, 136 A. 257, and cases cited. The argument of the defendants that the writing fails because it lacks the signature of the plaintiff and also because mutuality of remedy does not exist, requires scant consideration. Neither our statute cited above nor any case in this state which the defendants have brought to the attention of the court holds the plaintiff's signature essential. See also, 37 C.J.S., Frauds, Statute of, § 206. Nor is mutuality of remedy a requisite under the circumstances here where the plaintiff's engagement was only to pay a sum of money. Hickey v. Dole, 66 N.H. 336, 29 A. 792, 49 Am.St.Rep. 614; Eckstein v. Downing, 64 N.H. 248, 9 A. 626, 10 Am.St.Rep. 404. The case of Knox v. Allard, 90 N.H. 157, 5 A.2d 716, is clearly distinguishable in that there the plaintiff's promise was not payment of money but acts of personal service specific performance of which is not ordinarily decreed. Knox v. Allard, supra, and cases cited.
Nor do the defendant's contentions that the memorandum was merely an offer which was withdrawn before acceptance impress us. The unchallenged finding of the master is that the promise of the defendant to sell was given in exchange for the plaintiff's promise to buy, and that twice within the time stipulated the plaintiff tendered the agreed price which the defendant Priest refused. It is fundamental that mutual promises furnish adequate consideration for each other. Makowiec v. Prudential Ins. Company, 83 N.H. 547, 145 A. 269; Restatement, Contracts, N.H. anno, § 75, comment b.; 17 C.J.S., Contracts, §§ 97, 98. Furthermore the plaintiff both by his bill in equity and orally has acknowledged his promise, 37 C.J.S., Frauds, Statute of, § 206, note 61; 49 Am.Jur.Spec.Pref., p. 50, 51, §§ 36, 37; 65 A.L.R. 49 note. Neither our statute nor any authorities in this state cited by the defendants require the consideration for the defendants' promise as distinct from the consideration for the conveyance or performance to be stated in the memorandum. In the present case the consideration for the conveyance in the sum of $7,000 was stated and that is sufficient.
R.L., c. 383, § 1; Huot v. Jannelle, N.H., 56 A.2d 639; Brown v. Fowler, 70 N.H. 634, 47 A. 412; McDonald v. Fernald, 68 N.H. 171, 38 A. 729; ...
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Cooley v. Stevens
...343 Ill.App. 298, 98 N.E.2d 868, an Illinois case; Sewell v. Dolby, 1951, 171 Kan. 640, 237 P.2d 366, a Kansas case; Swanson v. Priest, 1948, 95 N.H. 64, 58 A.2d 207, a New Hampshire case; Reynolds v. Dixon, 1948, 187 Va. 101, 46 S.E.2d 6, a Virginia case; Clotfelter v. Telker, Ohio App. 19......
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Hawthorne Trust v. Maine Sav. Bank
...title to [interests] in real estate" as defined in RSA 477:3-a. Our prior decisions support this proposition. See Swanson v. Priest, 95 N.H. 64, 66-67, 58 A.2d 207, 209 (1948); Smith v. Wedgewood Builders Corp., 134 N.H. 125, 131, 590 A.2d 186, 189 (1991). The equitable interest in the righ......
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Cunningham v. Singer, 6123
...executed by the parties clearly establish their agreement to buy and sell a certain one acre parcel of land. Swanson v. Priest, 95 N.H. 64, 66, 58 A.2d 207, 208 (1948). However, no action could be maintained upon it 'unless the agreement * * * or some memorandum thereof, is in writing and s......
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...the plaintiff was supplied by the bringing of his bill in equity, alleging that he is ready, willing and able to purchase. Swanson v. Priest, 95 N.H. 64, 58 A.2d 207; Gulf Oil Corp. v. Rybicki, 102 N.H. 51, 149 A.2d 877, If the memorandum should be interpreted as an option to purchase, it c......