
    Thomas J. Vantassel versus George G. Hathaway, Ex’r.
    
    Where the plaintiff, in consideration of $700, conveyed to the defendant’s testator a house worth $1800, to which the grantee added an 1/; and, fifteen months after said conveyance, the grantee gave to the plaintiff a certificate that he “will let” the plaintiff “have” said house “by his paying him within $100 what it cost him;” and the grantee devised said house by • will to the defendant; and the defendant, subsequent to the death of the testator, conveyed said house by his quitclaim deed to another; — Meld, that, in an action against the executor of said grantee, to recover damages for not conveying said house in accordance with said certificate, the presiding Judge properly ordered a nonsuit.
    On Exceptions from Nisi Prius, Appleton, C. J., presiding.
    Assumpsit on the following memorandum : —
    "Bangor, Sept. 2, 1858. — This is to certify, that I will let T. J. Yantassel have the house he built and formerly occupied, any time, by his paying me within $100 what it cost me.” (Signed) "J. Hathaway.”
    The writ was dated May 1, 1863.
    It was admitted that the premises were conveyed by the plaintiff to J. Hathaway, May 21, 1857, who thereupon took possession of the same, and that said Hathaway died in May, 1860.
    The plaintiff introduced the foregoing paper; a copy of the last will and testament of the defendant’s testator, in which the testator had devised the premises to the defendant and appointed him executor; and a copy of a quitclaim deed, dated Dec. 18, 1861, from the defendant, in his individual capacity, to one Abby Hathaway, conveying the same premises.
    
      Charles Jennings, called by the plaintiff, testified — that he knew the lot on which plaintiff built the house in question ; lot was 148 feet on Pond street, and 100 feet on Hayward street; knew J. Hathaway in his lifetime; plaintiff lived in the house; moved out and J. Hathaway moved in and occupied the same until his death; worth $1800. J. Hathaway told witness he had let plaintiff have $700 and taken a deed of the premises, and would give plaintiff in $100, if he paid it back.
    
      David Boynton, called by plaintiff, testified — he worked for plaintiff in finishing the house ; well built; worth $1800 when plaintiff left it. Worked for Hathaway afterwards; put on L ; house all finished.
    
      George W, Maxim,, called by plaintiff, testified — he had worked at building houses many years, helped finish house in question; worth $1800 to $2000.
    On the foregoing testimony, the presiding Judge, ou motion of defendant’s counsel, ordered a nonsuit, to which the plaintiff excepted.
    
      Knowles, for the plaintiff.
    
      Blake & Garnsey, for the defendant.
   Appleton, C. J.

This is an action of assumpsit founded on the following memorandum.

"Bangor, Sept. 2, 1858. — This is to certify, that I will let T. J. Yantassel have the house he built and formerly occupied, any .time, by his paying me within one hundred dollars what it cost me. " J. Hathaway.”

It is obvious, that here is no mutuality. The plaintiff was under no obligation to take the house and pay for the same. The defendant, if ever so desirous of having the amount specified, could not enforce its collection. Nor does the case show that there was any consideration whatever for the alleged promise. Being without consideration, it could not be enforced. The case of Bean v. Burbank, 16 Maine, 458, is similar in all respects, and is directly in point against the maintenance of the action. To the same effect is that of Burnet v. Bisco, 4 Johns., 235.

The counsel for the plaintiff’ rely on Atwood v. Cobb, 16 Pick., 227. But, in that case, the contract was signed by both parties, and the plaintiff offered to show that he agreed to take the land in question. There was mutuality of contract as well as consideration. Both these elements are wanting in the case at bar. Nonsuit confirmed.

Cutting, Kent, Walton, Barrows and Danforth, JJ., concurred.  