
    THOMAS F. MASON, Plaintiff and Respondent, v. NICHOLAS H. DECKER, Defendant and Appellant.
    MUTUAL AGREEMENT.
    An agreement in writing, whereby a party who executes the same promises to buy certain property of a party named in the agreement (but who does not execute the same), is valid if supported by a sufficient consideration, and such consideration may be proved by parol, and may consist of the promise or engagement to sell the property described in the agreement, on the part of the other party named therein, but who did not execute the same (Justice 9. Lang, 43 N. T. 493; 53 Id. 333).
    This principle applied to the case at bar, and in support of a recovery on such a contract, where the mutual agreement of the parties and the consideration of the contract was fully established by parol proof.
    Before Curtis, Ch. J., and Sanford and Freedman, JJ.
    
      Decided March 5, 1877.
    
    Appeal by the defendant from a judgment for $15,993.92 entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    The action is brought to recover the cost price of 133 shares of stock, of the “New York Construction Company,” which the plaintiff alleges were purchased by the defendant on June 30, 1873, to be paid for on October 10 following, or previously, at defendant’s option. The plaintiff further alleges that it was agreed that the plaintiff should, transfer the stock to the defendant or to his order as the payments for the same should be made, and that the defendant subscribed a memorandum of such contract, but thereafter refused to accept the stock or to pay for the same, when tendered on October 10.
    The answer put in issue the ownership of the stock by plaintiff, also, the mutuality of the alleged agreement for the purchase of the stock, and denied the making of such a contract as was set up in the complaint. It also avers that the plaintiff never executed or delivered to the defendant any counterpart .of the alleged • agreement. That there was no consideration for the same.
    The answer also denied any promise to pay for the. stock or any indebtedness to plaintiff. Exceptions were taken by defendant to. rulings of the court on the trial, also to the charge of the court and to refusals to charge.
    The jury found a verdict for the amount claimed. The defendant moved for a new trial on the exceptions, on the ground that the verdict was against the weight of evidence, and also upon the grounds stated in section 264 of the Code. The court denied the motion, and the defendant excepted. From the judgment entered on the verdict, and from the order denying a new trial, the defendant appealed.
    
      James M. Smith, of counsel, Samuel G. Courtney, attorney, for appellant.
    
      Wm. H. Scott, for respondent.
   By the Court.—Curtis, Ch. J.

It is insisted by the defendant, that the agreement which is subscribed only by him, is invalid for want of mutuality, and can not be enforced for want of consideration.

The case of Justice v. Lang, (42 N. Y. 493; 52 Id. 323), and MSS. opinion on the third hearing of the same by the court of appeals, establishes the doctrine that a promise of the nature of the defendant’s in this action was valid if supported by a sufficient consideration, and that such consideration may be proved by parol, and may consist in the promise or engagement of the plaintiff.

The evidence, with very little conflict, showed that in April, 1873, the plaintiff held 143 shares of this stock, and that the defendant then verbally agreed that if the plaintiff would sign a certain subscription paper, binding himself to advance certain moneys in an énterprize wherein they were both interested, he would by July 1 following, take and pay for all the stock and bonds in this company held by plaintiff at cost and interest.

The plaintiff then signed the subscription paper, and verbally agreed to so sell the stock and bonds. After this, ten shares of the stock were taken by the defendant of the plaintiff and transferred to a Mr. Stanton, and paid for by his note indorsed by the defendant, which was paid.

Previous to June 30, the defendant declined to sign a memorandum of this agreement, and thereupon, in consideration that the defendant would sign the memorandum of agreement sued upon and dated June 30, 1873, the plaintiff released him from Ms obligation to take the bonds of the company, limiting the agreement to the taking of the 133 shares of the stock then remaining, in which form the defendant signed it.

These facts, together with repeated tenders of the stock to the defendant, and demands of payment from him, in pursuance to the obligation in suit, of what was shown to be the cost price of the stock and interest, were proved at the trial.

The weight of evidence sustained the jury in finding that the defendant signed and delivered the memorandum of agreement as his contract and obligation, and that it was supported by a sufficient consideration, the court properly instructing them, if they found otherwise in either of these respects, their verdict must be for the defendant.

The plaintiff sues to recover upon defendant’s contract a sum agreed to be paid by the defendant for a certain number of shares of stock, all of which were sold to him and ten of which were delivered. The obligation of the defendant contains a clause that as payments are made, the stock shall be transferred subject to his order. It was the plaintiff’s right, after he had tendered the undelivered stock, to sue for the price iff accordance with the provisions of the obligation. The defendant had procured the plaintiff to make the subscription heretofore referred to, by promising to take the stock, and after he had obtained the subscription from the plaintiff, which was the consideration for his agreement, and had received a part of the stock, the contract was so far executed, that the plaintiff was entitled, the jury so finding the facts, to the rule of damages charged by the court.

The court charged the jury correctly, and there are no exceptions to the rulings at the trial that are well taken.

The judgment and order appealed from should be affirmed.

Sanford and Freedman, JJ., concurred.  