
    Silvernail vs. Cole.
    An executory promise to pay a sum of money to be recanted from a bargain which is void by the statute of frauds—as a parol contract for the sale of standing timber—is not binding, for the want of a consideration to support it.
    This was an appeal by the defendant from a judgment of the Broome county court. The cause originated in a justice’s court; where the plaintiff declared upon a note or agreement, dated Dec. 6, 1850, executed by the defendant, by which he promised to pay to the order of the plaintiff, sixty days after date, fifty dollars, in shook staves at ten dollars a thousand. The defendant put in an answer, in which he alledged that the note declared on, if the same was ever made by the defendant, was obtained and given without any consideration therefor, and was void for that reason; and that it was obtained and procured by the fraud and deceit of the plaintiff, and by his false, fraudulent and deceitful representations and statements, and was void for that reason; also that it did not belong to the plaintiff, &c.
    It appeared in evidence that about the month of November, 1850, the defendant, Cole, sold, by a verbal agreement, to the plaintiff, Silvernail, and one La Fayette Cross, what shook timber there was standing on his (Cole’s) lot, for the sum of $25, and received from Silvernail $5 of the purchase money. A few days after the sale was made, Cross and the defendant went and counted the trees which they considered shook timber, and this count embraced 108 or 104 trees of red, rock and black oak, and no other ldnd of timber. When the bargain was made Cole supposed he was only selling these three kinds of oak, and did not intend to sell his white oak timber; and he had no idea that the purchasers would claim the white oak timber under this agreement. Cross afterwards parted with his interest in the contract to Silvernail, and the latter then set up a claim not only to the red, rock and black oak, but also to the white oak and chestnut trees standing on Cole’s lot. Silvernail talked with Henry Cole, the defendant’s brother, and said that he could hold all the timber on the defendant’s lot; that he was so advised by Esquire Lowell; and he requested him to inform the defendant of it, and he accordingly did it. After this the defendant met the plaintiff and wished to have the bargain given up. The plaintiff insisted that he could hold all the different kinds of oak timber on the defendant’s lot, and the defendant insisted that he could not. The plaintiff then told the defendant that Esquire Lowell and Mr. Dickinson had told him that he could hold the white oak timber. The defendant conceded that if Esquire Lowell and Mr. Dickinson had said what was represented, it must be so, and thereupon paid back to Silvernail the'five dollars which he had received from him, and gave the note in suit to be recanted from the bargain. There was some evidence to show that the statement of Silvernail to the defendant’s brother, Henry Cole, that Esquire Lowell had told him that he could hold all the timber on the defendant’s lot, and his statement to the defendant that Esquire Lowell and Mr. Dickinson had told him that he could hold the white oak timber, were falsehoods.
    The justice rendered a judgment against the plaintiff, and in favor of the defendant, for costs; and on appeal, the county court reversed the judgment.
    
      Hotchkiss óf Seymour, for the appellant.
    
      Dickinson fy Wright, for the respondent.
   By the Court,

Shankland, J.

The legal proposition involved in the decision of this case is whether an executory promise to pay a sum of money to be recanted from a bargain which is void by the statute of frauds, is binding. The very statement of the case indicates the answer. It is not binding because there is no consideration to support it.

The contract for the sale of the timber growing on the defendant’s land, being by parol, was void. (1 Denio, 550. 5 Barb. 364.) Promising to pay money to be released from such a contract, is entirely without consideration, and the promise can not be enforced. For this reason the justice’s judgment was legally right. The case of North v. Forest, (15 Conn. R. 400,) is to the point.

[Cortland General Term,

September 14, 1852.

Whether there was fraud in obtaining the note is not so clear, nor is it material to decide. The judgment of the county court must be reversed, and that of the justice affirmed.

Mason, ShanTcland, Gray and Crippen, Justices.]  