Mullarky v. Young

BURNETT, J.

The action was brought to recover damages for the breach of a contract to convey real estate. A general demurrer to the complaint was sustained and the correctness of the ruling is the only question involved in the appeal.

The foundation of plaintiff’s claim is disclosed by the following allegation: “That heretofore, to wit, on the eighteenth day of December, 1907, for a good and valuable consideration, plaintiff entered into an agreement in writing with defendant for the purchase of certain real property situate in the County of Alameda, State of California, by the terms of which agreement defendant agreed to sell and convey, and plaintiff agreed to buy certain real property in the County of Alameda; a copy of said agreement is hereto annexed and marked ‘Exhibit A’ hereby specifically referred to and made a part of this complaint as though duly incorporated therein.” Referring to said exhibit we find it does not contain any agreement whatever between plaintiff and defendant. It imposes no obligation and confers no privilege upon either in behalf of the other. Plaintiff did not promise to pay the consideration to defendant nor did defendant- agree to convey the property to plaintiff. It is true that if we consider it in any sense a contract plaintiff and defendant were participants therein, but it cannot be said to be an agreement between them as there were other parties of equal rank to share the common burden and benefit. A contract between A and B on the one hand and C and D on the other cannot be said to be an agreement between A and C. But the correct position here is that the purported contract was not executed and therefore it never created any reciprocal rights and obligations. It related to the conveyance of real property, and under the statute it was required to be in writing and subscribed by the party to be charged. But as the written instrument was signed by only two of the four parties to the agreement, it does not constitute a complete contract, and therefore it does not constitute the ground for a cause of action. This is clear from the exhibit which recites that “This agreement made this eighteenth day of December, 1907, between J. H. Young and Lizzie S. N. Young, his wife, the parties of the first part, and J. J. Mullarky and Marguerite Mullarky, his wife, the parties of the second part, Witnesseth: That the

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said parties of the first part in consideration of the covenants and agreements on the part of the said parties of the second part and the payments by them to be made, agree t’o sell and convey to the said parties of the second part, and they agree to buy all that certain lot',” etc.