Mundine v. Crenshaw , 3 Stew. 87 ( 1830 )

By LIPSCOMB, C. J.

The judgment on the demurrer is the first error assigned. There can be doubt but the condition in the certificate was inserted for the benefit of the vendors, and not the vendees. It is a sufficient agreement in writing to take the sale out of the statute of frauds. The plaintiffs below were not bound to make titles, till the purchase money had been paid; but the time when such payment was to be made, would not be so much of the essence of the contract as to abrogate the sale, if the payment was not made on the particular day specified in the certificate. The Court of Chancery would decree title on payment being made, and the vendors could not resist such decree, on the ground that the payment had not been made on or before the day appointed for such payment. It is very clear that it could not have been the intention of the parties, that the option should be with the vendees to pay the purchase money or to give up the lot in discharge of the contract. The retention of the title until the money was paid could only have been designed as additional security to the vendors. A case somewhat similar to this in principle, was decided by this Court some time ago, in which the effect of a failure to pay at the day, was fully considered, and the doctrine I have advanced on this subject recognised.^a

The next assignment grows out of the bill of exceptions taken on the trial below, “that Walter Crenshaw, Joseph B. Earle. James Childress, Charles Lefebvre Desnoettes, and GeorgeS. Gaines were, at the time when the said note in the declaration described was made, the Commissioner? of the town of Demopolis, that Ihe said contract was made with them, and was delivered to them, and that they were the persons intended by the name of the Commissioners of the town of Demopolis in the said note by the ma-leers of it, and also that since that time and before the commencement of this suit, Charles Lcfebvre Dcsnoucttes had died. The defendant then asked the witness if'they were not a committee or commissioners of a company consisting of a large number of persons, and he answered in the affirmative. The defendant then asked the witness if the said company did not keep minutes of their proceedings, and of the appointment, of said Commissioners, the witness said they did keep a book in which was entered the constitution of the company and other proceedings, and also a minute of the election of said Commissioners; therefore the defendant prayed the Court to reject the said parol testimony, which was refused.” The want of proper parties plaintiff, can doubtless be taken advantage of by the defendant on the -general issue. But unless the defendant wished to establish a fraud practised' by those persons or some of them in holding themselves out, and contracting with him in a character that did not belong to them, it cannot be perceived of what use the minutes of the association could have been, after the representative character of the Commissioners had been acknowledged and recognised bjr the defendant. This he certainly had clone by contracting with them as such. If ihe minutes had been produced they could not have been given in evidence- in favor of the plaintiff, but they could have been used against them. A party is never required to furnish testimony against himself, without notice to produce it, and proof that such written testimony is in his power. The strongest testimony that the plaintiffs - could produce of their character as Commissioners in this suit, was the acknowledgment of the defendant, and'this was done as before observed by treating with them as such. In an action brought by several persons as co-partners, it might as well be required of them to produce the articles of co-partnership as the best evidence of the fact of such co-partnership existing. We consider the parol testimony as properly admitted, and that there is no error. Let the judgment be affirmed.

Judgment affirmed.

Judges White and Cbenshaw, not sitting.

a Powell v. King.