The contract embraces all the essentialelements of a valid contract--parties, consent, consideration, and subject matter. Between what parties is this agreement or contract made and entered into? Between Hugh S. May, party of the first part, and Charles Minturn, party of the second part. What do these words--" This agreement, made and entered into," etc.--mean? Do they not mean the meeting and agreement of the minds of the parties by whom they are used, upon the stipulations that immediately follow in relation to the subject matter specifically mentioned and described? What are these stipulations? 1st. That in consideration of seven hundred and fifty dollars, etc., payable in notes of three hundred and seventy-five dollars each, etc., to be executed and delivered on May's executing and delivering a deed, etc. Now, by whom are these notes to be made, and to whom delivered? There are but two parties to the agreement--May and Minturn. Clearly, the notes are not to be executed by May, for it is evident it is to him they are to be delivered upon his executing the deed. If not by May, then they must be made and delivered by Minturn, the other party to the agreement. To attribute any other sense to the language used, wouldlead to the absurd conclusion that the notes are to be made by some person not a party to the agreement or in any manner bound thereby. (Richards v. Edick, 17 Barb. 263; Barton v. McLean, 5 Hill, 258; Pordage v. Cole, 1 Saund. 319 h; Pugh v. Chesseldine, 11 Ohio, 109; Bird v. Richardson, 8 Pick. 252; Atwood v. Cobb, 16 Pick. 227.)
JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for a modification of the judgment:
In rendering judgment on this appeal we overlooked the fact that defendants, Baylis, Cutter and Sullivan, only appeal, and from the judgment against themselves. That portion of the judgment affecting appellants may be reversed as to them without affecting the judgment as to defendant May, who is not a party to this appeal. The judgment of reversal is therefore too broad in its terms, and respondent, Minturn, asks that it may be so modified as to affect the appellants only, and allow the judgment to stand as to the defendant, May. We think he is entitled to the modification. Ordered that the judgment heretofore entered in this case be, and the same is, hereby vacated, and that judgment be entered reversing the judgment of the District Court as to the appellants, Baylis, Cutter and Sullivan, and that said judgment, as to defendant May, stand as the judgment of the Court, and that appellants recover their costs.
Petition for rehearing as to the other point denied.