[297]*297The opinion of the court was delivered by
Poland, J.
The defendants interpose three objections to the plaintiff’s right of recovery upon the written contract declared upon, by the evidence adduced upon the trial in the county court and detailed in the bill of exceptions; — 4. That there was not any sufficient consideration shown to make the contract binding upon .the defendants; — 2, That the plaintiff has not alleged in his declaration, and did not show upon the trial, that, at the time of calling upon the defendants to pay the amount of the notes mentioned in the contract, he made any offer to assign or transfer the notes and mortgage to the defendants; — 3. That the condition, or alternative, which the defendants had, to pay the mortgage debt, expired previous to the other alternative, to quitclaim the premises to the plaintiff, — so that a failure to pay the money was equivalent to an election by the defendant to deed the premises; and that the plaintiff’s declaration is not adapted to such a state of facts.
1. As to the question of considerationalthough a considera» tion is necessary to support any contract, whether by parol, or in writing, still the law is well settled in this state, that it is not necessary, that such consideration should appear upon the face of the written contract itself; but it may be shown by other evidence, and even by parol evidence. The consideration for the undertaking by the defendants, alleged in the plaintiff’s declaration, (and which he is of course bound to prove,) is his own agreement and undertaking to permit the defendants to occupy the mortgaged premises from the date of the contvact to the first day of January, 1848, when the defendants were to perform the final stipulations of the contract. That this consideration is sufficient, if proved, is not denied; inasmuch as the plaintiff was entitled to have the possession of the mortgaged premises, if he chose, and he had also the legal right to make the defendants liable for the rents and profits, if they remained in possession.
It is well settled, that a consideration may be inferred from the terms and obvious import of a written contract, when it is not distinctly alleged and set forth in the contract itself, as a consideration ; and in the present case we think it is fairly inferrable from the stipulation of this contract itself, that there was an agreement by the plaintiff to permit the defendants to occupy the mortgaged [298]*298premises during the term mentioned in the contract. It is answered to this, however, that the contract is not signed by the plaintiff, and that therefore no aid is to be derived from any thing, that appears in the contract itself upon that subject. It is well settled now in this state, that the accepting and adopting a written contract by a party, who has not put his name to it, binds such party, equally as if he had signed such contract; — this was so decided by this court, some years since, in Lamoille Co., in the case of Sawyer v. Waterman et al.
Again, the case shows, that immediately previous to the time of the execution of the contract, the plaintiff was making preparations to enforce the collection of his mortgage debt, or get possession of the premises, and that negotiations were pending between the plaintiff and the defendants in relation thereto. These facts, in connection with the relative situation of both parties at the time, had a legitimate tendency to show such agreement on the part of the plaintiff. It was also proved, that the plaintiff did permit the defendants to occupy the premises during all the time mentioned in the contract, without making any claim upon them for the possession, or for rents and profits, or taking any measures to enforce his mortgage. This, too, we think, was proper evidence, tending to show the existence of the consideration alleged in the plaintiff’s declaration; and this species of evidence, as well as any other arising from the facts and circumstances attending the transaction, is expressly sanctioned by the court in the case of Phelps v. Stewart et al., 12 Vt. 256.
Upon the whole, we think, that there was sufficient evidence given by the plaintiff, tending to prove the existence of the consideration alleged by him in his declaration, to entitle him to go to the jury upon that point, and that the county court erred in directing a verdict for the defendants upon this ground.
2. As to the defendants’ second objection, we do not see, that it is well founded, as nothing appears upon the face of the contract between the parties, that there was any agreement by the plaintiff to assign the mortgage and notes to the defendants, on payment by them of the amount. The transaction, upon the face of it, does not appear to be a contract for the purchase of the mortgage and notes by the defendants of the plaintiff. It may be proper here to consider [299]*299the situation of the parties in reference to the contract, and to the subject matter of the contract, at the time it was entered into. The plaintiff was the mortgagee, his mortgage debt was due, and he was entitled to the possession. The defendants stood in the place of the mortgagor, being the owners of the equity of redemption, having taken a quitclaim deed of the premises of him. Under these circumstances the more probable and reasonable presumption would be, that the defendants, as between themselves and the mortgagor, were to pay the mortgage debt to the plaintiff, and thus extinguish it, than that they were to take an assignment of it, and set it up, or keep it on foot, against the mortgagor. In short, we can see no more propriety in holding it necessary for the plaintiff in this case to allege or prove an offer on his part to assign the notes and mortgage to the defendants, as a condition precedent to his right of action, than there would be, in the ordinary case of a suit by the payee against the maker of a note, that the plaintiff should allege and prove, that he offered to give up the note to the defendant, if he would pay it.
3. We are unable to see, that the third objection of the defendants is well founded in fact. It is apparent from the written contract itself, that the day fixed by the parties for the defendants’ final election of which alternative of the contract they would fulfil, and for their actual fulfilment thereof, was the same day, viz., the first day of January, 1848. The two forms of expression used in the contract, as applied to the two different modes of performing it, we regard as being identical. The defendants undoubtedly had the right, either to surrender the premises and pay the interest on the mortgage debt, as stipulated, at any time previous to the first day of January, 1848, or on that day, or they had the right to pay the debt and interest on that day; and the right of election until then was entirely with them. But the defendants did neither; and the time expired, in which they had the right to elect which alternative they would adopt. What, then, were the rights of the plaintiff, and what was he entitled to claim of the defendants?
The authorities cited by the plaintiff’s counsel show clearly, that where a contract is in the alternative, to do one of two things, or to do a certain act, as to deliver a horse, or other chattel, or pay a certain sum of money, by a day certain, before the day of performance [300]
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[297]*297The opinion of the court was delivered by
Poland, J.
The defendants interpose three objections to the plaintiff’s right of recovery upon the written contract declared upon, by the evidence adduced upon the trial in the county court and detailed in the bill of exceptions; — 4. That there was not any sufficient consideration shown to make the contract binding upon .the defendants; — 2, That the plaintiff has not alleged in his declaration, and did not show upon the trial, that, at the time of calling upon the defendants to pay the amount of the notes mentioned in the contract, he made any offer to assign or transfer the notes and mortgage to the defendants; — 3. That the condition, or alternative, which the defendants had, to pay the mortgage debt, expired previous to the other alternative, to quitclaim the premises to the plaintiff, — so that a failure to pay the money was equivalent to an election by the defendant to deed the premises; and that the plaintiff’s declaration is not adapted to such a state of facts.
1. As to the question of considerationalthough a considera» tion is necessary to support any contract, whether by parol, or in writing, still the law is well settled in this state, that it is not necessary, that such consideration should appear upon the face of the written contract itself; but it may be shown by other evidence, and even by parol evidence. The consideration for the undertaking by the defendants, alleged in the plaintiff’s declaration, (and which he is of course bound to prove,) is his own agreement and undertaking to permit the defendants to occupy the mortgaged premises from the date of the contvact to the first day of January, 1848, when the defendants were to perform the final stipulations of the contract. That this consideration is sufficient, if proved, is not denied; inasmuch as the plaintiff was entitled to have the possession of the mortgaged premises, if he chose, and he had also the legal right to make the defendants liable for the rents and profits, if they remained in possession.
It is well settled, that a consideration may be inferred from the terms and obvious import of a written contract, when it is not distinctly alleged and set forth in the contract itself, as a consideration ; and in the present case we think it is fairly inferrable from the stipulation of this contract itself, that there was an agreement by the plaintiff to permit the defendants to occupy the mortgaged [298]*298premises during the term mentioned in the contract. It is answered to this, however, that the contract is not signed by the plaintiff, and that therefore no aid is to be derived from any thing, that appears in the contract itself upon that subject. It is well settled now in this state, that the accepting and adopting a written contract by a party, who has not put his name to it, binds such party, equally as if he had signed such contract; — this was so decided by this court, some years since, in Lamoille Co., in the case of Sawyer v. Waterman et al.
Again, the case shows, that immediately previous to the time of the execution of the contract, the plaintiff was making preparations to enforce the collection of his mortgage debt, or get possession of the premises, and that negotiations were pending between the plaintiff and the defendants in relation thereto. These facts, in connection with the relative situation of both parties at the time, had a legitimate tendency to show such agreement on the part of the plaintiff. It was also proved, that the plaintiff did permit the defendants to occupy the premises during all the time mentioned in the contract, without making any claim upon them for the possession, or for rents and profits, or taking any measures to enforce his mortgage. This, too, we think, was proper evidence, tending to show the existence of the consideration alleged in the plaintiff’s declaration; and this species of evidence, as well as any other arising from the facts and circumstances attending the transaction, is expressly sanctioned by the court in the case of Phelps v. Stewart et al., 12 Vt. 256.
Upon the whole, we think, that there was sufficient evidence given by the plaintiff, tending to prove the existence of the consideration alleged by him in his declaration, to entitle him to go to the jury upon that point, and that the county court erred in directing a verdict for the defendants upon this ground.
2. As to the defendants’ second objection, we do not see, that it is well founded, as nothing appears upon the face of the contract between the parties, that there was any agreement by the plaintiff to assign the mortgage and notes to the defendants, on payment by them of the amount. The transaction, upon the face of it, does not appear to be a contract for the purchase of the mortgage and notes by the defendants of the plaintiff. It may be proper here to consider [299]*299the situation of the parties in reference to the contract, and to the subject matter of the contract, at the time it was entered into. The plaintiff was the mortgagee, his mortgage debt was due, and he was entitled to the possession. The defendants stood in the place of the mortgagor, being the owners of the equity of redemption, having taken a quitclaim deed of the premises of him. Under these circumstances the more probable and reasonable presumption would be, that the defendants, as between themselves and the mortgagor, were to pay the mortgage debt to the plaintiff, and thus extinguish it, than that they were to take an assignment of it, and set it up, or keep it on foot, against the mortgagor. In short, we can see no more propriety in holding it necessary for the plaintiff in this case to allege or prove an offer on his part to assign the notes and mortgage to the defendants, as a condition precedent to his right of action, than there would be, in the ordinary case of a suit by the payee against the maker of a note, that the plaintiff should allege and prove, that he offered to give up the note to the defendant, if he would pay it.
3. We are unable to see, that the third objection of the defendants is well founded in fact. It is apparent from the written contract itself, that the day fixed by the parties for the defendants’ final election of which alternative of the contract they would fulfil, and for their actual fulfilment thereof, was the same day, viz., the first day of January, 1848. The two forms of expression used in the contract, as applied to the two different modes of performing it, we regard as being identical. The defendants undoubtedly had the right, either to surrender the premises and pay the interest on the mortgage debt, as stipulated, at any time previous to the first day of January, 1848, or on that day, or they had the right to pay the debt and interest on that day; and the right of election until then was entirely with them. But the defendants did neither; and the time expired, in which they had the right to elect which alternative they would adopt. What, then, were the rights of the plaintiff, and what was he entitled to claim of the defendants?
The authorities cited by the plaintiff’s counsel show clearly, that where a contract is in the alternative, to do one of two things, or to do a certain act, as to deliver a horse, or other chattel, or pay a certain sum of money, by a day certain, before the day of performance [300]*300the right of election is in the party who is to do the act; but if he suffer the day to elapse, without making his election, then the right of election becomes changed, and is in the other party, or the party to whom the promise is to be performed. And this, we apprehend, is the well established rule of law. To apply this rule to the present case; — the plaintiff, after the expiration of the time limited for the performance of the contract by the defendants, had the right either to follow the security of his mortgage, or to call upon the defendants to pay the amount of his mortgage debt and interest. Whether it was necessary for him to make any formal election, or give the defendants any notice of his election, before bringing his suit, it is not necessary to decide, as it seems he took that precaution and gave notice in writing to the defendants that he elected to receive the money on the notes.
There is another view, in which we think this case might be placed, that is, that the amount of the mortgage debt might be treated as stipulated damages, to be paid by the defendants, in case they failed to perform the other part of the contract, and surrendered the premisesas if A. agree to deliver to B. a certain horse, or pay him $100, on a given day, and neglect to do either, would any one doubt, but that B. might claim and recover the $100 of A. ? So in this case, the defendants agree to surrender these premises and pay the interest of the plaintiff’s debt by such a day, or pay him a certain amount of money, to be ascertained by computing the amount due on the notes.
In short, we think the county court erred in directing a verdict for the defendants, and that the case should have been submitted to the jury, with instructions corresponding to the views we have expressed. Their judgment is therefore reversed and a new trial granted.