Opinion
Argued October 11, 1897
Decided October 26, 1897
E. Countryman for appellant.
Charles E. Patterson for respondent.
The contract in question, although unilateral in form, was binding upon both parties named therein, as one had assented thereto by subscribing his name at the end thereof, and the other by accepting the instrument so signed as a valid and operative agreement and acting thereupon. ( L'Amoreux v. Gould, 7 N.Y. 349; Justice v. Lang, 42 N.Y. 493, 498; Mason v. Decker, 72 N.Y. 595.) It is to be observed, however, that every express promise appearing in the contract was made by the defendant, who covenanted in the first place that if he should die before his wife, the sum borrowed should be a charge upon his estate and paid as a debt owing by him; and in the second place that, upon the same contingency, his estate should convey to her his one-half interest in certain real estate, which, as it is claimed, she had given to him. Finally, he declared by the closing sentence that both of these covenants should be void, provided his wife should not survive him. She made no express promise whatever, either by way of releasing the debt absolutely or conditionally, or any other. The instrument is silent as to the rights or obligations of either party in case the husband should prove the survivor. That contingency is not provided for, even by implication, as the agreement by its terms was to be of no effect unless Mrs. Cronin should live the longer. The argument, therefore, founded on the relations of the parties and the covenant of the husband not only to pay the debt to his wife, but also to convey land to her in addition if she survived him, to the effect that the loan was by implication to become a gift as a part of a family arrangement if he survived her, cannot be sound, because in the latter event, the agreement was to be the same as if it had never been made. Neither the express nor the implied covenants, if any, survived the death of the wife, for the life of the agreement in all its parts was to cease with her own, provided her husband still lived. Nor does the contention that the written agreement is presumed to express the entire contract between the parties rest on any better foundation, for when the wife died there was no agreement. It had ceased to exist by virtue of its own stipulations. It simply provided for a contingency that never happened, and as it has now turned out never can happen, and as soon as this became certain through the death of Mrs. Cronin, the agreement was, according to its express words, "of no effect." Whatever the presumption might have been if the agreement had been kept in force by the happening of the other contingency, to wit, the death of Mr. Cronin before that of his wife, it is unnecessary to consider, because as she is dead while he still lives, there is no longer any agreement for the presumption to operate upon. The written and conditional promise of the defendant to pay was not the sole consideration for the loan, because, if a certain event happened, the agreement containing that promise was wiped out, which left the original implied promise to repay in force. It was not agreed either in express terms or by reasonable implication that, unless the debt was paid as provided in the contract, it was not to be paid at all. Under these circumstances, we think, as the learned Appellate Division held, that "the parties are remitted to such obligations and duties as the loan and its non-payment imply," for, unless the debt created by the loan was extinguished by the agreement, it was not extinguished at all.
What, then, it is pertinently asked, was the object of the defendant in executing a contract apparently so one-sided? His primary object, of course, was to secure the loan, which Mrs. Cronin refused to make until he signed the contract. As she gave a mortgage upon her own property and he signed the bond with her, upon the face of the transaction she might appear to be the principal debtor, so that if he should die first she would need some written evidence that the mortgage was given to raise money to lend to him and that the amount thereof was to be repaid by him or his estate. It was not unnatural that she should request this or that he should comply with her request in order to get the money from her. The promise to convey the land to her if she survived him was simply a promise to restore what she had given him, so that she could have it instead of his heirs. Whether there was the further object of postponing the time of payment until the death of one of the parties, for as long as the contract was in life all implied promises were in life also, or of substituting the conveyance of land in the place of paying interest, if Mrs. Cronin survived her husband, it is unnecessary to decide.
The case is peculiar and not without difficulty, but we think that the conclusion reached by the Appellate Division is correct and that their judgment should be affirmed, and judgment absolute rendered against the appellant upon his stipulation, with costs.
GRAY, O'BRIEN and HAIGHT, JJ., concur; ANDREWS, Ch. J., and BARTLETT, J., dissent on the ground that the only evidence of a loan was contained in the writing, and that by the writing, by fair construction and in view of the relation of the parties, the only obligation assumed by the husband was contingent upon the wife's surviving; and MARTIN, J., dissents generally.
Judgment accordingly.